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Maguire v Chief Constable of Cumbria Constabulary
[2001] EWCA Civ 619
COURT OF APPEAL (CIVIL DIVISION)
ALDOUS, MAY, RIX LJJ
26 APRIL 2001

CIVIL PROCEDURE: CRIMINAL LAW; Criminal law - Police - Arrest - Unlawful arrest - Arrest without warrant - Apprehended breach of the peace - Police having honest belief breach of the peace imminent - Claimant not acting unlawfully - Whether reasonable grounds to believe breach of peace imminent - Whether arrest unlawful - Detention following arrest - Whether false imprisonment

MAY LJ: [2] The appellant, Kenneth Maguire, was called to the Bar in November 1992. I do not know whether he ever practised as a barrister, but in March 1996 he started employment as a seasonal assistant warden at Eskdale Youth Hostel in the Cumbria area. It appears from the evidence generally to have been a reasonably remote place.

[3] The events which give rise to these proceedings occurred on 13 May 1996. On that day at around 11.45 am in the morning there was apparently an incident between Mr Maguire and another assistant warden at the youth hostel whose name was Caroline Clark. She was to allege that Mr Maguire had assaulted her and used foul language, and that as a result she had left the hostel in fear. She apparently telephoned the operations manager, a gentleman called Robert Barnby, who during the course of the afternoon made investigations of both Mr Maguire and Caroline Clark. He found out from her that she said she was frightened and was concerned at what the appellant might do to her if she went back to the youth hostel while he was still there.

[4] Mr Barnby himself then travelled to the youth hostel to hear Mr Maguire’s side of the story. He was concerned at the way that he was behaving. Put shortly, after considering the matter Mr Barnby decided that he would have to dismiss Mr Maguire. The police were contacted. There was some difference on the evidence perhaps as to who made the contact, but it is not material to resolve that piece of difference.

[5] At about 7.30 pm in the evening of 13 May, quite a long time after the incident in the morning, a police officer called Police Constable McGlennon arrived at Eskdale Youth Hostel. There was some disputed evidence about exactly what happened during the next three-quarters of an hour. It is however clear that Mr Barnby, who was still there, informed Mr Maguire that he was dismissing him and requested him to leave. Mr Maguire refused to leave. The police constable tried to persuade him to agree to leave and stay for the night at another youth hostel at Keswick, but Mr Maguire refused. At about a quarter past eight in the evening the officer arrested Mr Maguire ‘in order to prevent a breach of the peace’, as he put it in his witness statement.

[6] The appellant, Mr Maguire, was then taken in police custody to Whitehaven Police Station where he arrived approximately half an hour later at a quarter to nine. Later that evening he was told that he would be reported for an offence relating to breach of the peace and was released from custody at some time around 11.40 or 11.45 pm. He tells us today that he had nowhere to go that night and had to spend the night on a building site.

[7] On 23 May 1996 a summons was issued against him by the West Cumbrian magistrates. The summons was however withdrawn on 20 August 1996 by the Crown Prosecution Service at Mr Maguire’s first appearance before the Whitehaven magistrates. So it was that on 3 December 1996 Mr Maguire began proceedings in the Blackpool County Court against the Chief Constable of Cumbria alleging that he was unlawfully arrested, assaulted, falsely imprisoned and maliciously prosecuted, and claiming damages, aggravated damages and exemplary damages for those allegations.

[8] The proceedings eventually came on for hearing before Mr Recorder Narayan and a jury at Carlisle County Court and the hearing took place between 18th and 21 October 1998. Both parties were then represented by counsel. In circumstances which I shall describe in a moment, Mr Maguire’s claim was dismissed. This is his appeal against that decision; permission to appeal having been given by my Lord, Lord Justice Aldous, on 12 May 2000, the Recorder having previously refused permission to appeal.

[9] At the conclusion of the evidence the Recorder made a ruling in favour of the defendant. I put it that way because the nature of the ruling, as it appears from the transcript, is not entirely clear. The Recorder said that at the conclusion of the evidence counsel for the claimant had made a submission which was resisted by counsel for the defendant. The submission was, to quote the Recorder:
‘. . . that on the best case scenario (his words), [he in that instance being the claimant’s counsel] were there reasonable grounds to justify the arrest by the defendant in the person of PC McGlennon of the claimant?’

[10] Counsel for the defendant is recorded as saying that the question was whether there were reasonable grounds to justify the arrest on the defendant’s evidence.

[11] The Recorder referred to the law by reference to the case of R v Howell [1982] 1 QB 416, [1981] 3 All ER 383, as being that, where there was no actual violence, a constable might lawfully arrest a person where he reasonably and honestly believed that a breach of the peace would be committed in the immediate future. The behaviour which caused the constable to believe that a breach of the peace would occur had to be related to violence which was actually done or was likely to be done to the person, or where a person was put in fear of being so harmed by apprehended violence.

[12] The Recorder concentrated - as I think he was invited to do - on the evidence of PC McGlennon alone which he considered in some detail. He concluded that what the police constable had been told in relation to Caroline Clark was not evidence upon which he could reasonably believe that a renewal of violence was threatened. He was persuaded that that evidence was double hearsay and that the weight to be put on it was minimal. But he concluded on the basis of the officer’s evidence of the behaviour of the appellant, that this did give him reasonable grounds to believe that a breach of the peace would be committed in the immediate future by Mr Maguire, although he had not yet committed any such breach. This finding is challenged on this appeal and I shall return to the details of it a bit later in this judgment.

[13] The Recorder having made this finding, it was agreed between counsel for both parties that a single question should be left to the jury. The terms of the question were these:
‘Has the defendant proved on the balance of probabilities that PC McGlennon honestly believed that arrest was necessary to prevent a breach of the peace?’

[14] The Recorder then summed the case up to the jury, who retired to consider their verdict at 1.15 pm on 21 October. They returned very shortly at 2.10 pm with a unanimous verdict which gave the answer ‘yes’ to the question asked of them. On the basis of this decision, and without demur from the claimant’s counsel, judgment was entered for the defendant.

[15] It is to be observed that these proceedings which I have related quite shortly concentrated, and so it appears to me concentrated only, on the case of wrongful arrest and perhaps also false imprisonment. Malicious prosecution was not dealt with so far as I can see at all. But it is perhaps understandable if the parties tacitly assumed that if the wrongful arrest case failed so also would the malicious prosecution case.

[16] The appellant, Mr Maguire, has formulated his grounds of appeal on a number of occasions: on his application for permission to the Recorder, in his notice of appeal and amended notice of appeal, and in his written submissions to this court. For convenience I summarise the grounds from his written submissions as follows:

[17] Ground 1. The Recorder was wrong to reject the appellant’s submission that there were no reasonable grounds for believing that a breach of the peace would be committed in the immediate future.

[18] Ground 2. The Recorder misdirected the jury in a number of respects.

[19] Ground 3. The Recorder erred in leaving to the jury the question which he did, and should have required the jury to find a series of facts on the basis of which he should have determined questions of law.

[20] Ground 4. The appellant could not be arrested for apprehended breach of the peace when he refused to leave his accommodation because the terms of his contract of employment entitled him to remain there, and because he was protected from eviction under the Protection from Eviction Act 1977.

[21] Ground 5. There was no power of arrest of a person such as himself who was merely refusing to leave the premises.

[22] It seems to me that the last four grounds of appeal are in some respects aspects of the first. In so far as they deal with additional matters, I think they are of little substance. I do not think it is necessary to deal with the criticisms that are made of the judge’s summing-up in the light of my view on other aspects of the case. The third ground I think misstates the question which the Recorder in fact left to the jury. This ground of appeal appears to suppose that the Recorder left to the jury the issue whether there were reasonable grounds for arrest, but in fact the question left to the jury concerned Police Constable McGlennon’s honest belief.

[23] Mr Spencer, on behalf of the respondents, submits that having made the ruling which he did the Recorder was overgenerous in leaving this question to the jury, since there was no proper evidential basis for suggesting that the police constable did not honestly believe that arrest was necessary to prevent a breach of the peace in circumstances where the Recorder had held that on the officer’s evidence he did have reasonable grounds to believe that a breach of the peace would be committed in the immediate future.

[24] It seems to me that there are difficulties in each party’s submissions here, since, as Mr Spencer points out, the question left to the jury was an agreed question by counsel on both sides. It is to be supposed that both counsel reckoned that the question was necessary and that an answer to it would dispose of the case.

[25] As to the fourth ground of appeal, in my judgment the terms of the appellant’s contract of employment and questions of protection from eviction are not in point. The question was whether the officer was entitled to arrest the appellant for reasonably apprehended immediate breach of the peace.

[26] Ground five seems to me to be a mixture of ground four and ground one. As I have said, ground four is I think of no substance. But ground one, which is in my view the main ground of appeal, remains for consideration.

[27] In my judgment the question which the Recorder was invited to decide and which he decided, and which is the subject of ground one of this appeal, was something of a muddle. The respective functions of judge and jury in cases of wrongful arrest, false imprisonment or malicious prosecution often cause difficulties and have, I think, done so here. As Diplock LJ said in Dallison v Caffery [1965] 1 QB 348, [1964] 2 All ER 610, at p 371G of the former report:
‘Next as to procedure. In arresting, detaining or prosecuting a suspected felon a person is acting in furtherance of the administration of justice. It is a well-settled rule of procedure that the question whether in so doing he is acting reasonably is one to be decided by the judge. It may be that this rule reflects the judicial distrust of Jacobinism among juries at the formative period of this branch of English law; but it can at least be rationalised on the ground that a judge, by reason of his office and his experience, is better qualified than a juryman to determine what conduct is reasonable or unreasonable in furtherance of the administration of justice. In those days, however, the jury was the only tribunal which at common law was competent to determine disputed issues of fact. If there was conflicting evidence as to what had happened, that is, as to what the conduct of the defendant in fact was, the jury alone was competent to resolve the conflict. But when what had happened was established, whether by uncontradicted evidence or, in case of conflict, by the jury’s finding of fact, it was for the judge to rule whether the defendant’s conduct was reasonable or unreasonable. This is still the position today where an action for false imprisonment or malicious prosecution arising out of the arrest, detention or prosecution of a suspected felon is tried by judge and jury. It is for the judge to decide what facts given in evidence are relevant to the question of whether the defendant acted reasonably. It is thus for him to decide, in the event of a conflict of evidence, what finding of fact is relevant and requisite to enable him to decide the question. But a jury is entitled to base findings of fact only on the evidence called before it and, as in any other jury trial, it is for the judge in an action for false imprisonment or malicious prosecution to decide whether the evidence on a relevant matter does raise any issue of fact fit to be left to a jury. If there is no real conflict of evidence, there is no issue of fact calling for determination by the jury. This applies not only to issues of facts as to what happened, on which the judge has to base his determination whether the defendant acted reasonably, but also to the issue of fact whether the defendant acted honestly, which, if there is sufficient evidence to raise this issue, is one for the jury. (See Herniman v Smith. 8) For the reasons already indicated, however, where there is a reasonable and probable cause for an arrest or prosecution, the judge should not leave this issue to the jury except in the highly unlikely event that there is cogent positive evidence that, despite the actual existence of reasonable and probable cause, the defendant himself did not believe that it existed: see Glinski v McIver.9’

[28] This state of the law and practice is anomalous but well-established. Although disputed questions of fact are for the jury, the question whether on facts so found or undisputed facts an arresting officer had reasonable grounds to justify the arrest, in this instance, whether he had reasonable grounds to believe that a breach of the peace would be committed in the immediate future, is a question to be decided by the judge. In the present case that was not the question which the Recorder was invited to decide. He was asked to decide whether on the best case scenario there were reasonable grounds to justify the arrest. In his consideration of that question he considered only the evidence of the arresting officer. Thus the question that he was asked and which he answered was, not whether the officer had reasonable grounds to believe that a breach of the peace would be committed in the immediate future but whether the evidence taken at its highest was capable of supporting that finding.

[29] The logic of that decision might require questions of fact relevant to the issue whether the officer had reasonable grounds to believe that a breach of the peace would be committed in the immediate future should be left to the jury; the judge having held that there was evidence capable of supporting that finding, but not having considered possible countervailing evidence. The question left to the jury by agreement concerned only the arresting officer’s honest belief. That is the question which the jury decided. Regrettably, neither the Recorder nor the jury decided the question whether the arresting officer had reasonable grounds to believe that a breach of the peace would be committed in the immediate future. Since the question left to the jury was agreed by counsel for both parties, it seems that they must have a degree of responsibility for this lacuna.

[30] As I have said, in making his ruling the Recorder looked only at the evidence of PC McGlennon. The salient points of his evidence which the Recorder referred to are as follows. The officer said that he arrived at the youth hostel where the appellant was an employee. He heard a complaint from Mr Barnby relating to the incident with Caroline Clark earlier in the day. The officer asked the appellant what had happened, but he was interrupted by the appellant who said: ‘You’re obliged to caution me. I’m a barrister.’ The officer again asked what had happened and was told in effect that the appellant had given his notice which had three weeks to expire. The appellant made it clear that he was not going to resign from his job. The officer said that the appellant was agitated and wound up. He said that nothing would persuade him to leave the hostel. The officer found it difficult to speak with him. The appellant was extremely agitated, very tense and kept darting out to the lounge and kitchen. Mr Barnby kept following him and eventually the appellant went to his accommodation. The officer said that eventually both he and Mr Barnby went to the appellant’s room. Mr Barnby told the appellant that he was being dismissed and asked him to leave. The appellant not only refused to leave but seemed adamant that he would not do so. He was very agitated and rigid and made darting movements all the time. The officer said to the appellant:

‘The other staff members are very frightened of you. You’ve been violent once when there were staff and children here.’

[31] The officer said he was extremely concerned in respect of the appellant’s mental state. He had not succeeded in communicating with him. He thought that the best course of action was that the appellant should leave the hostel for fear that he would be violent if Caroline Clark returned or with other members of the staff or other persons on the premises. The appellant refused an offer of accommodation in Keswick and refused to contact his parents. The officer said to the appellant:

‘If this persists I may arrest you in order to prevent a breach of the peace. Now are you going to go? You can stay in Keswick Youth Hostel.’

[32] The appellant said that he had no intention of leaving. Mr Barnby on hearing this said, ‘This isn’t on at all’. Then the officer said that because of the appellant’s behaviour and his demeanour he arrested the appellant in order to prevent a breach of the peace. The reasons were that there was every possibility that Caroline Clark would have to return at some time, and as it was the summer season and children were in the hostel he felt he had no alternative but to exercise the power of arrest to prevent a possible breach of the peace. When he was cross-examined the officer agreed that the appellant did not make any threat to him, and there appears to have been no evidence that the appellant threatened violence towards Mr Barnby.

[33] The Recorder ruled by reference to the case of Howell [1982] 1 QB 416, [1981] 3 All ER 383, that a renewed threat of violence towards Caroline Clark did not contribute to a justification for an arrest for an apprehended breach of the peace. He said that the evidence was double hearsay and, more importantly I think, that the weight to put on it was minimal. The Recorder said that there was no evidence upon which the officer could reasonably believe that a renewal of violence was threatened in relation to Caroline Clark. He nevertheless found in favour of the defendant that on the basis of the officer’s evidence of the appellant’s behaviour that did give him reasonable grounds to believe that violence would be committed in the immediate future, although he had not yet committed any breach of the peace. As I have said, in its context this has to be read as a finding that there was evidence capable of sustaining that conclusion and no more, since that was the substance of the issue which the Recorder set out to decide and since he did not consider any evidence other than that of the police constable.

[34] The appellant’s case is that the totality of the officer’s evidence did not amount to reasonable grounds to believe that a breach of the peace would be committed in the immediate future. Mr Maguire has referred us to passages in the evidence. He submits that the officer did not say that the appellant ever behaved in a way which amounted to any threatening or abusive or insulting words or behaviour. He did not allege that he was angry or shouted or raised his voice, or was aggressive to anyone. He did not threaten the officer himself nor Mr Barnby, and there was little or no evidence that anyone else was around. There was a time interval of about 15 minutes between the last time when the appellant was with the arresting officer at about 8 o’clock and the time when he opened the door of his accommodation at about 8.15 pm to see the officer and Mr Barnby standing together in the corridor. Mr Maguire submits that this time gap was significant; in that what mattered was his demeanour at that time. What was happening then was that the officer was asking him to leave the premises and go elsewhere. He was refusing to do so and Mr Barnby was regarding this as unacceptable. But the appellant submits that the demeanour alleged against him at this time was insufficient to amount to reasonable grounds to believe that he was about to be violent or to threaten violence to anyone. The case was not an emergency. The arresting officer had by this time been at the premises for about 45 minutes, during which no violence had occurred. There had been a delay of some two hours before the police arrived during which nothing untoward had happened. But the general burden of Mr Maguire’s submission is that he was in truth arrested because he refused to leave, not because his demeanour was indicative of impending violence.

[35] He has referred us to the decision of this court in Foulkes v Chief Constable of Merseyside Police [1998] 3 All ER 705, [1998] 2 FLR 789. In that case Beldam LJ said this at p 711 of the former report:
‘I would accept Mr Ley’s submission that the common law power of a police constable to arrest where no actual breach of the peace has taken place but where he apprehends that such a breach may be caused by apparently lawful conduct is exceptional. Many of the instances in which such a power has been upheld in the past are, as a result of the enactment of the Public Order Act 1986, unlikely to give rise to difficulty since for offences under that Act and particularly under ss 4 and 5, statutory powers of arrest without warrant are conferred on a constable.
In the circumstances of this case, although I am prepared to accept that a constable may exceptionally have power to arrest a person whose behaviour is lawful but provocative, it is a power which ought to be exercised by him only in the clearest of circumstances and when he is satisfied on reasonable grounds that a breach of the peace is imminent.
In Albert v Lavin [1981] 3 All ER 878 at 880, [1982] AC 546 at 565 Lord Diplock referred to a well-established principle:
“. . . every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatened to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will.”
In my view, the words used by Lord Diplock and in the other authorities show that where no breach of the peace has taken place in his presence but a constable exercises his power of arrest because he fears a further breach, such apprehended breach must be about to occur or be imminent. In the present case PC McNamara acted with the best of intentions. He had tried persuasion but the plaintiff refused to be persuaded or to accept the sensible guidance he had been given but in my judgment that was not a sufficient basis to conclude that a breach of the peace was about to occur or was imminent.’

[36] Mr Spencer submits that the appellant’s behaviour was such that the officer could reasonably foresee or suspect a breach of the peace. He submits that suspicion is enough. He relies in his written submission on the following facts as being relevant.
1. The letter written by Mr Maguire to Caroline in the early hours of the morning demonstrates that in the days and hours leading up to the assault he was agitated and was using foul language.
2. A serious allegation of assault on a female had already been made. She had an injury, albeit slight, which was consistent with her being assaulted.
3. As soon as she could she fled the youth hostel.
[37] Pausing there, it seems to me that those three submissions are unpersuasive in circumstances where the Recorder had ruled that the incident in relation to Caroline Clark was of minimal significance and where there is no respondent’s notice on this appeal. Going on:
4. He refused to discuss the incident with Mr Barnby. There is clear evidence from three witnesses that Mr Maguire’s behaviour was volatile. By his demeanour he demonstrated he was incapable of, for example, sitting down and kept darting around or out of rooms.
5. He unreasonably refused to leave the Eskdale Youth Hostel, saying that he would not go before 3 June. This position was untenable.
6. Mr Barnby made arrangements for alternative youth hostel accommodation which was unreasonably refused. Transport to the alternative accommodation was also unreasonably refused.
7. The respondent’s evidence demonstrates that Mr Maguire has a propensity for violence and that he appeared unstable.
8. Mr Maguire demonstrated that he had no or very little understanding of how his behaviour was or could be upsetting and frightening to others. The respondent contends that once police had left Eskdale hostel there was no reason to think that staff and others would not have continued to be in fear for their personal safety having not been arrested. One member of staff had already been assaulted and had fled.
9. Given the factual circumstances, Mr Maguire’s submission that the respondents acted unlawfully in arresting him for breach of the peace is not accepted. The respondent contends that the police constable had reasonable and probable cause to suspect a breach of the peace and therefore had power to arrest Mr Maguire in this case. The hurdle the respondent has to meet for suspicion is low. Further, it is submitted that the common law is sufficiently robust and sensible to permit arrest where behaviour is characterised by suspicion of lawlessness, interference with the peace and enjoyment of others or where there is resistance, whether passive or otherwise.

[38] Mr Spencer submitted to us that the police officer was reasonably entitled to believe that if he, the officer, left the premises with Mr Maguire remaining there Mr Barnby might imminently seek to secure his eviction and that this was likely to result in violence. He referred us to R v Chief Constable of Devon and Cornwall ex parte CEGB [1982] QB 458, [1981] 3 All ER 826, and the passage in the judgment of Lord Denning MR at p 471 of the former report.

[39] Mr Maguire in answer referred us to Percy v Director of Public Prosecutions [1995] 3 All ER 124, [1995] 1 WLR 1382, where comment is made on that passage in Lord Denning’s judgment. However, the present case was never put on this basis at trial and the constable’s evidence was not directed to the possibility that Mr Barnby might seek to evict Mr Maguire at all. It seems to me that the facts of the CEGB case are quite different from those in this case. The question - to which the answer is by no means obvious - whether Mr Barnby would have been entitled in law to evict the appellant by force if necessary was not explored at trial. There was, as I understand it, no evidence to support the contention that if the policeman left without Mr Maguire having left Mr Barnby would have taken any steps to remove Mr Maguire by force if necessary, nor that the officer feared that this might happen. The trouble with these submissions generally is that the case simply was not put on this basis at trial.

[40] Mr Spencer submits by reference to the case of Foulkes that there may be special circumstances which might justify arrest. But the passage to which he refers, and which I have already cited, does not in my view extend the law beyond that which I have described. He also referred to Porter v Commissioner of Police for the Metropolis, unreported, 20 October 1999. But I do not think that this takes the present case any further.

[41] In my judgment, the Recorder was wrong not to rule in favour of the submission that the evidence taken at its highest was not capable of supporting the defence that the officer had reasonable grounds for believing that violence would be committed in the immediate future. If it did not, the defence to the claim for wrongful arrest was bound to fail. I find Mr Maguire’s submissions, which I have summarised, persuasive. There was no evidence that he had been violent during that evening towards either the officer or Mr Barnby. There was no real evidence that anyone else was in the vicinity. Caroline Clark was not even in the building nor anywhere near it. It seems to me that such evidence as there was, effectively that the appellant was tense and that he was behaving oddly, perhaps darting around, was not capable of supporting the Recorder’s finding. It was, I think, significant that there had been a 15-minute gap during which nothing of significance to this issue had occurred, and that when the police officer and Mr Barnby again approached Mr Maguire he was arrested in effect because he refused to leave the premises, such refusal not being accompanied by violence or threat of it.

[42] Accordingly, I would hold that the Recorder’s initial ruling was wrong and Mr Spencer accepts on behalf of the defendant that in that event the defence to the claim for wrongful arrest - and I think with it false imprisonment - falls away and that in consequence the claimant is entitled to judgment on those two claims.

[43] It is suggested by both parties, with greater or lesser enthusiasm, that this court could also proceed to deal with and determine the claim in relation to malicious prosecution. I am quite unpersuaded that this is possible. The malicious prosecution case was not the subject of any ruling by the Recorder, nor any finding by the jury. Such finding as the jury did make, that PC McGlennon honestly believed that arrest was necessary to prevent a breach of the peace, tends to suggest that they might not have found the necessary element of malice for malicious prosecution. But the fact is that there is no sufficient first instance findings made by the jury or the Recorder to enable this court to reach a conclusion on this part of the case. Accordingly, it seems to me that this court is not in a position to make any finding one way or the other on that and I would not do so.

[44] The parties are agreed that in the event that the claimant’s case on wrongful arrest and false imprisonment succeeds in this court, for economy this court should proceed to assess his damages. We have been referred to the case of Thompson v Commissioner of Police for the Metropolis [1998] QB 498, [1997] 2 All ER 762, where, at pp 514 of the former report and following, Lord Woolf gives guidance on the level of damages appropriate in cases such as this. On p 515D of the former report one finds that:

‘In a straightforward case of wrongful arrest and imprisonment the starting point is likely to be about £500 for the first hour during which the plaintiff has been deprived of his or her liberty. After the first hour an additional sum is to be awarded, but that sum should be on a reducing scale so as to keep the damages proportionate with those payable in personal injury cases and because the plaintiff is entitled to have a higher rate of compensation for the initial shock of being arrested. As a guideline we consider, for example, that a plaintiff who has been wrongly kept in custody for 24 hours should for this alone normally be regarded as entitled to an award of about £3,000.’

[45] That case was decided in February 1997 and modest increases, perhaps, for inflation are available for consideration. Mr Spencer submits that for the time period between 8.15 and 11.45 or so during which the appellant was arrested and in custody, an amount of £770 would be appropriate on the basis of the passage that I have just referred to. His calculation was not I think calculated ‘on a reducing scale’ for the hours after the first, but he accepted that a rounded-up figure of about £850 allowing for inflation would be appropriate. Mr Maguire submits that a figure in the order of £1,300 would be an appropriate award. But in addition he suggests that the court should award aggravated damages.

[46] I think that Mr Maguire is correct that Lord Woolf did not contemplate a dramatic drop in the damages after the first hour. But on the other hand there is no strict mathematical calculation and there has to be room in any amount up to about £3,000 for a full 24-hour period. Mr Maguire says that it was an aggravating feature that he was arrested in support of an unlawful eviction, that his clothes were put on the floor and that he was not given time to get his things together, and that at 11.45 pm when he was released he had to spend a night on the street, or more particularly on a building site. He had, however, been offered accommodation before this arrest at another hostel and had been offered transport there. These matters were not investigated by the jury or the Recorder, but, as I say, both parties accept that, for reasons of sensible economy, the court should assess the damages.

[47] I am not persuaded in this case that there are features which would justify an award of aggravated damages, although in saying that I emphasise that I am referring to the claims for wrongful arrest and false imprisonment only and saying nothing one way or other about any claim for false imprisonment which might in the future succeed or might not.

[48] At p 516 of the Thompson case [1998] QB 498, [1997] 2 All ER 762, Lord Woolf said that aggravating features can include humiliating circumstances at the time of arrest or any conduct of those responsible for the arrest or the prosecution which shows that they have behaved in a high-handed, insulting, malicious or oppressive manner, either in relation to the arrest or imprisonment or in conducting the prosecution. Aggravating features can also include the way the litigation and the trial was conducted. Taken all in all, I am not persuaded that an amount for aggravated damages is justified.

[49] I would award general damages for wrongful arrest and false imprisonment in this case in the sum of £1,250. As I say, I emphasise that that deals only with the case of wrongful arrest and false imprisonment and damages for that.

[50] For these reasons, I would allow this appeal.

RIX LJ: [51] I agree.
ALDOUS LJ: [52] I also agree.