Police – Unlawful conduct – Action for damages – Compensatory damages – Malicious prosecution – Aggravated damages – Directions to be given to jury in respect of bad character – Whether jury’s award of damages one to which no jury could reasonably come: Manley v Metropolitan Police Commissioner COURT OF APPEAL (CIVIL DIVISION)

[2006] EWCA Civ 879, (Transcript: Smith Bernal Wordwave)

Manley v Metropolitan Police Commissioner
COURT OF APPEAL (CIVIL DIVISION)
[2006] EWCA Civ 879, (Transcript: Smith Bernal Wordwave)
HEARING-DATES: 28 JUNE 2006
28 JUNE 2006
CATCHWORDS:
Police – Unlawful conduct – Action for damages – Compensatory damages – Malicious prosecution – Aggravated damages – Directions to be given to jury in respect of bad character – Whether jury’s award of damages one to which no jury could reasonably come

COUNSEL:
S Murphy for the Appellant/Claimant;M Ley-Morgan for the Respondent

PANEL: WALLER, MOSES, WILSON LJJ

JUDGMENTBY-1: WALLER LJ:

JUDGMENT-1:
WALLER LJ:

INTRODUCTION

[1] The Appellant (Mr Manley) was the Claimant in proceedings against the Respondent (the Commissioner of Police for the Metropolis). By his points of claim he alleged 1. assault; 2. false imprisonment; and 3. malicious prosecution by police officers for whom the Respondent was vicariously liable. The trial was heard at the Central London County Court before His Honour Judge Crawford Lindsay QC and a jury between 4 and 15 July 2005. The jury were requested to bring in their verdicts on liability before deciding quantum, and on liability Mr Manley was to a substantial extent successful.

[2] The judge after discussion with counsel and, in a fashion which was not criticised by either Mr Shaun Murphy for the Appellant or Mr Ley-Morgan for the Respondent, directed the jury on damages. He provided guidance on basic damages by reference to a range of figures, and further directed the jury as to the approach they should take to the question whether there should be an award of aggravated damages and exemplary damages, and if so the quantum of such awards. His range so far as assault was concerned was GBP1,000-GBP2,000; so far as false imprisonment was concerned was GBP7,500-GBP12,500; and so far as malicious prosecution was concerned it was GBP4,000-GBP5,000. The jury awarded GBP1,000 for assault; GBP7,500 for false imprisonment; and GBP1,500 for malicious prosecution. They awarded no aggravated or exemplary damages.

[3] The Appellant appeals against the award of damages. Mr Murphy for the Appellant did not pursue the appeal against the basic awards for assault and false imprisonment recognising that those figures were within the range albeit the lowest figures suggested by the judge. His submission was that the award for malicious prosecution where the award was GBP2,500 below the lowest figure in the judge’s range was an award which no reasonable jury could consider sufficient, and that a failure to award aggravated or exemplary damages was a decision to which no reasonable jury could come.

THE ISSUE IN BROAD TERMS

[4] In relation to liability the jury were asked a series of questions. Their answers to those questions enabled Mr Murphy and Mr Ley-Morgan to agree before us to a substantial extent what the jury found as the facts and thus where they had accepted or rejected the evidence of one side or the other. There was no dispute that to a large extent the Appellant’s account of matters had been accepted. The jury’s findings involved a number of the police officers having behaved reprehensibly in the extreme, fabricating serious allegations on which the Appellant was originally charged. The findings involved a number of officers having told lies at a criminal trial to support those fabricated allegations and having continued to tell those lies in order to try and defeat the claim of the Appellant in the civil proceedings.

[5] The Appellant was however a man with a serious criminal record, and by the conclusion of the appeal, it became clear that an important consideration in the appeal was the extent to which that factor provided a basis on which the award for malicious prosecution should be discounted.

[6] A further point of some significance relied on by Mr Ley-Morgan so far as aggravated or exemplary damages were concerned related to the extent to which it could be said by reference to certain findings of the jury that the Appellant’s conduct contributed to the events which gave rise to the Appellant’s claims.

THE FACTS

[7] I append the questions posed to the jury and the answers given by the jury. On those findings the position is accepted by both sides to be as follows. The jury accepted, contrary to the Appellant’s version of events, that a Golf motor car was being driven at 80 mph in a residential area in the early hours of Christmas morning 1998. The jury accepted that the police thought that the Appellant was the driver but also accepted the police were wrong in that belief. The jury accepted that when the car came to a halt the occupants got out, and that the Appellant did not stay by the car. They did not accept as the Appellant had claimed that the Appellant was apprehended by PC Dakin pulling his shirt and ripping his buttons off.

[8] From this stage on however the jury effectively accepted the Appellant’s version of the events of that morning. They accepted that PC Dakin struck the Appellant on the head with his extended baton without excuse. They found that PC Dakin was lying when he asserted that his reason for so doing was because the Appellant had put his hand in his pockets and threatened to kill him by saying ‘I am going to put two fucking bullets through you’.

[9] The jury accepted that PC Dakin thereafter sprayed the Appellant in the face with CS gas because he feared that the Appellant was going to attack him, but in the light of the previous attack this was hardly a finding in favour of the police.

[10] The jury rejected as a lie PC Dakin’s assertion that the Appellant chased him round a car parked in the road, jumped on a window sill of a house and head butted a window, and his assertion that two black males arrived with the Appellant then saying ‘now I am really going to get you cos my mates are here, I live in this area. You’re dead’.

[11] It was undisputed that two other police officers arrived, PC Marshall and PC Dawson. It was not in dispute that PC Marshall hit the Appellant with his baton twice on the left thigh again without excuse. The jury rejected the police case that the Appellant was the aggressor, and going to attack PC Marshall.

[12] It was not in dispute that PC Dakin then hit the Appellant over the back with his baton while he was being held by PC Marshall and PC Dawson, but the jury rejected the officers’ evidence that the Appellant was struggling violently trying to hit PC Marshall and PC Dawson.

[13] The jury must have accepted that the Appellant was then held on the ground and hit by PC Dakin and other police officers with batons, rejecting the police evidence that no such thing happened. They must also have accepted that whilst on the ground, the Appellant was gratuitously sprayed in the face with CS gas by PC Dakin rejecting the police evidence that no such thing happened.

[14] The Appellant was put in a police van to be transported to the police station He was at first taken to hospital because of his injuries. He was then brought back to the police station. The police evidence was that the Appellant had refused to take a breath test. It was not in dispute that the Appellant did breathe into a hand held machine and that it turned red/amber. But the jury found that PC Dawson and (I emphasise) the custody sergeant, Sergeant Roberts, had fabricated their accounts of the Appellant being asked thereafter to provide a specimen of breath on the Evidential Breath Machine.

[15] The Appellant was initially charged with:

1. refusing to take a breath test;

2. threatening to kill PC Dakin;

3. affray and

4. resisting police officers in the course of their duties – all charges which on the jury’s verdicts, the police knew to be unsustainable.

Those charges led to the Appellant being held in custody until his trial in May 1999. By the time of his trial the indictment preferred against the Appellant contained two counts – count one alleging dangerous driving, and count two alleging threats to kill. On the jury’s verdict the police always knew that count two the more serious charge was unsustainable. At the conclusion of the trial the Appellant was acquitted on both counts. Further summary offences including the failure to take a breath test which on the jury’s verdict the police knew to be unsustainable still proceeded in the magistrates’ court until discontinued on 1 September 1999.

[16] It is right to emphasise that the findings of the jury at the civil trial involved finding that the police had not only lied at the criminal trial but had persisted in their lies at the civil trial.

THE JUDGE’S DIRECTIONS AND THE LAW

[17] The judge based his directions on the court of appeal decision in Thompson v Commissioner of Police [1997] 2 All ER 762, [1997] 2 All ER 762, [1997] 3 WLR 403. That case was concerned with Appellants who were of good character. It decided first that in cases where juries were assessing damages in actions for assault, wrongful imprisonment or malicious prosecution arising out police misconduct, s 8(1) of the Courts and Legal Services Act 1990 had had the effect of ‘lowering the barrier against intervention’ in relation to such awards. That this was the effect of Thompson is supported by the majority in Clark v Chief Constable of Cleveland Police [1999] EWCA Civ 1357. Thompson decided second that it was appropriate to give juries both general guidance on awarding damages and guidance as to the range of awards. It further dealt with the proper approach to aggravated damages and exemplary damages.

[18] Thus at p 771 on aggravated damages the court said:

‘It is when the jury have to consider whether there should be an award of aggravated damages as additional compensation that the award in this class of case is more analogous to that in defamation proceedings. As the Law Commission point out in their admirable consultative paper Aggravated, Exemplary and Restitutionary Damages (Consultation Paper No 132 (1993) para 2.17ff there can be a penal element in the award of aggravated damages. However, they are primarily to be awarded to compensate the Claimant for injury to his proper pride and dignity and the consequences of his being humiliated. This injury is made worse for the Claimant because it is more difficult to excuse when the malicious motives, spite or arrogance are on the part of the police (see Rookes v Barnard [1964] 1 All ER 367 at 407ff, [1964] AC 1129 at 1221ff per Lord Devlin).’

[19] On exemplary damages on the same page the court said: –

‘It is when the jury make an award of exemplary damages that the similarity of this class of action with defamation is closest. However, a factor justifying the award of exemplary damages, which in defamation actions makes consistency in the proper amount to award less likely, is that often the award is to prevent a newspaper profiting from the libel by increasing its circulation. This element of profiting from your tort is almost invariably absent from this class of action. In addition, as the Defendant is usually a chief officer of police, the personality of the Defendant will not usually be significant in determining what the appropriate level of punitive damages should be. While the conduct calling for the award of exemplary damages may differ it is to be hoped that it will be rare indeed for the most senior officers in the force to be in any way implicated.

The fact that the Defendant is a chief officer of police also means that here exemplary damages should have a lesser role to play. Even if the use of civil proceedings to punish a Defendant can in some circumstances be justified it is more difficult to justify the award where the Defendant and the person responsible for meeting any award is not the wrong doer, but his ’employer’. While it is possible that a chief constable could bear a responsibility for what has happened, due to his failure to exercise proper control, the instances when this is alleged to have occurred should not be frequent. There is also a greater problem of awarding exemplary as well as aggravated damages in the class of action under consideration because the very circumstances which will justify the award of aggravated damages are probably the same as those which make it possible to award exemplary damages. This accentuates the risk of a double counting. At least in defamation proceedings there is the additional factor of the Defendant profiting from the libel which provides the independent justification for the award of exemplary damages.’

[20] Under their general guidance the court said at p 773: –

‘(4) In a straightforward case of wrongful arrest and imprisonment or malicious prosecution the jury should be informed of the approximate figure to be taken as the correct starting point for basic damages for the actual loss of liberty or for the wrongful prosecution, and also given an approximate ceiling figure. It should be explained that these are no more than guideline figures based on the judge’s experience and on the awards in other cases and the actual figure is one on which they must decide.

(5) In a straightforward case of wrongful arrest and imprisonment the starting point is likely to be about GBP500 for the first hour during which the Claimant 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 Claimant 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 Claimant who has been wrongly kept in custody for 24 hours should for this alone normally be regarded as entitled to an award of about GBP3,000. For subsequent days the daily rate will be on a progressively reducing scale. (These figures are lower than those mentioned by the Court of Appeal of Northern Ireland in Oscar v Chief Constable of the Royal Ulster Constabulary [1992] NI 290 where a figure of about GBP600 per hour was thought to be appropriate for the first 12 hours. That case, however, only involved unlawful detention for two periods of 30 minutes in respect of which the Court of Appeal of Northern Ireland awarded GBP300 for the first period and GBP200 for the second period. On the other hand the approach is substantially more generous than that adopted by this court in the unusual case of Cumber v Chief Constable of Hampshire Constabulary (1995) Times, 28 January, in which this court awarded GBP350 global damages where the jury had awarded no compensatory damages and GBP50 exemplary damages.)

(6) In the case of malicious prosecution the figure should start at about GBP2,000 and for prosecution continuing for as long as two years, the case being taken to the Crown Court, an award of about GBP10,000 could be appropriate. If a malicious prosecution results in a conviction which is only set aside on an appeal this will justify a larger award to reflect the longer period during which the Claimant has been in peril and has been caused distress.

(7) The figures which we have identified so far are provided to assist the judge in determining the bracket within which the jury should be invited to place their award. We appreciate, however, that circumstances can vary dramatically from case to case and that these and the subsequent figures which we provide are not intended to be applied in a mechanistic manner.

(8) If the case is one in which aggravated damages are claimed and could be appropriately awarded, the nature of aggravated damages should be explained to the jury. Such damages can be awarded where there are aggravating features about the case which would result in the Claimant not receiving sufficient compensation for the injury suffered if the award were restricted to a basic award. 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 had 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 trial are conducted. (The aggravating features listed take account of the passages in the speech of Lord Reid in Broome’s case [1972] 1 All ER 801 at 836, [1972] AC 1027 at 1085 and Pearson LJ in McCarey v Associated Newspapers Ltd (No 2) [1964] 3 All ER 947 at 957, [1965] 2 QB 86 at 104-105).’

[21] I would comment at this stage. First Thompson indicates that guidance is to be given in all cases, but so far as the figures are concerned the court recognised they were applicable to what it termed ‘a straightforward case’, and that they were not to be used in a ‘mechanistic manner’. The court was not concerned in identifying the appropriate bracket, for example, in a case where the Claimant was of bad character or in guiding judges as to the effect of bad character on awards of basic damages. Second where the Defendant is the employer of the police officers involved the judgment makes clear that exemplary damages are unlikely to have a role. Third, it is suggested that aggravated damages should be awarded if the aggravating features would result in the Claimant not receiving sufficient compensation for his injury.

[22] Clark (supra) was concerned with a Claimant of bad character. It is further directly in point in that the court ruled that the awards for wrongful arrest and false imprisonment of GBP750, and the damages for assault of GBP150 were unappealable, and considered solely the award of damages for malicious prosecution. The majority increased that award from GBP500 to GBP2000. The difference between the majority and the minority was first as to whether the ‘intervention barrier had been lowered’ by Thompson and second as to whether the conduct of the Claimant in that case inside the house which might have led to a perfectly proper alternative prosecution and conviction was a factor to be taken into account in assessing damages. Roch and Peter Gibson LJJ thought not (see pp 1363 and 1367); Henry LJ thought otherwise expressing himself in this way at the end of his judgment: –

‘3.30 All in all this Appellant received GBP1,400 damages. If he had been differently arrested and differently charged, the likelihood is that he would have been convicted, he would have been at risk of losing his liberty and he would have had no claim whatsoever. I find it impossible to say that either the award under this head of damage or the totality of the award are far too low. It seems to me that the jury rightly took the view that Lord Woolf’s bracket was not meant to include those who set dogs on policemen, generally abuse the police, and tell the jury lies to profit from conduct which. differently charged, was criminal. In my judgment this court should not interfere with the jury’s award.’

[23] But Roch LJ and Peter Gibson LJJ clearly also thought that the bad character of the Claimant was a factor which made for a ‘discount’ on the damages. Their reasoning was this. Roch LJ first identified the heads of compensation for malicious prosecution as follows: –

‘Compensation for malicious prosecution has three aspects. First, there is the damage to a person’s reputation. The extent of that damage will depend upon the Claimant’s actual reputation and upon the gravity of the offence for which he has been maliciously prosecuted. The second aspect is the damage suffered by being put in danger of losing one’s liberty or of losing property. Compensation is recoverable in respect of the risk of conviction. McGregor on Damages 16th edition paragraph 1862 considers that an award under this head is basically for injury to feelings, unless there has been a conviction followed by imprisonment. The third aspect is pecuniary loss caused by the cost of defending the charge. There was no evidence of pecuniary loss in this case.’

[24] He then identified some improper conduct of the Claimant during the incident with which that case was concerned, which he accepted reduced the award made for false imprisonment, but he emphasised (relevant to the instant case) that such conduct could not be said to cause or contribute to the malicious prosecution. As regards malicious prosecution he said this:

‘With regard to the first head of compensation for malicious prosecution the jury were not dealing with a man of wholly good character. At the time of these awards the Appellant was not a man of good character. He had been cautioned in December 1992 for theft. He had a conviction at the Teesside Magistrates’ Court on 19 November 1993 for being drunk and disorderly. He was also convicted by that court on 15 December 1993 of stealing two packets of razor blades. Finally on 22 August 1995 he had been convicted by the magistrates of threatening words and behaviour. In respect of all three of those offences he was fined. He had a further caution for being in possession of a small piece of cannabis on the occasion that he was arrested for stealing the razor blades.

The jury may also have reached the conclusion that the Appellant was not a person who would be as concerned about facing a prosecution as others might be. Had the Appellant been a person of good character with normal sensitivities an appropriate award of damages, taking the figure of GBP2,000 as a starting point and then making allowance for the facts that the Appellant had to appear before the magistrates on no fewer than six occasions and that the prosecution endured over a period of 111/2 months, would, in my judgment, have been a figure in the region of twice or 21/2 times the sum suggested as the starting figure, namely GBP4,000 to GBP5,000. The sum actually awarded by the jury was an eighth or a tenth of these figures. Even making allowances for the Appellant’s cautions and convictions and for the fact that the Appellant may well have presented as someone who would not be as concerned when faced by prosecution for an offence under s 4 of the Public Order Act as others might be, I still view the award in this case of GBP500 as being inadequate, in the sense that it is substantially below what a reasonable jury could have thought necessary to compensate the Appellant. In my judgment the size of the award indicates that the jury probably took no account of the need to increase the starting figure of GBP2,000 because the malicious prosecution lasted nearly a year, before discounting that figure to take account of the two factors of the Appellant’s character and his convictions.’

[25] In Peter Gibson LJ’s judgment he expressed similar views to those expressed by Roch LJ and it is unnecessary to quote them.

[26] I accept of course that compensation for malicious prosecution has the three elements identified by Roch LJ. But I would emphasise that in my view some care must be taken in balancing the various elements. In some instances, albeit there may, in the case of a Claimant of bad character, be less loss of reputation, there may be greater risks of punishment if the prosecution were to succeed.

[27] All cases are different but where (as in the instant case) the malicious prosecution is for the very serious offence of threatening to kill a police officer, albeit the reputation of a man convicted of a very serious offence of violence (as here) may not suffer greatly, he is entitled to be compensated for the fact that (a) there is greater risk of the malicious prosecution succeeding and (b) a risk that he will get a longer prison sentence as a result of it succeeding, all of which will cause stress and anxiety.

[28] The judge in his direction on basic damages said this: –

‘The position here is this, ladies and gentlemen. It is for you to assess the figure. These are only brackets. We did not just pick the brackets out of the air. The brackets are based on a Court of Appeal case which we, as Judges, obviously have to follow in advising you as to the brackets. It is possible, of course, for you to exceed the brackets, but I would invite you, because it is only essentially right that there should be some sort of consistency, unless you are persuaded otherwise you should work within these brackets, but it is a matter for you.

In that event, if you work within the brackets, the brackets set out the figures there that have been discussed. The bracket for the assault is between GBP1,000 and GBP2,000. The most serious aspect of this case is the false imprisonment. The bracket there is between GBP7,500 and GBP12,500. For the malicious prosecution the bracket is GBP4,000 to GBP5,000. So it is up to you, ladies and gentlemen, but that is how I invite you to approach what we call the ‘basic damages’.’

[29] Neither counsel was critical of the judge’s direction but it seems to me, with respect, that it gave the jury very little guidance as to what they were compensating the Appellant for, particularly so far as malicious prosecution was concerned. It gave no guidance as to how they were to view the Appellant’s bad character. In my view guidance to juries dealing with malicious prosecution should spell out the elements identified by Roch LJ for which compensation is given. It should also, in a case of a Claimant of bad character, spell out how, even though his reputation may not be so damaged, there is a greater risk of being convicted and of receiving greater punishment if the prosecution succeeds.

[30] In my view, if the matter had been more fully explained to the jury, no reasonable jury could have gone below the GBP4,000, that being the bottom of the judge’s bracket. I would, if left to myself, have thought such a figure still too low, but the brackets chosen by the judge have not been criticised, and clearly the jury was taking the bottom end of the judge’s bracket in all instances.

[31] What then about aggravation? In this context the main thrust of Mr Ley-Morgan’s submission was that if one had regard to what started this incident, the Appellant to a great or some extent brought things on himself and that must have been in the jury’s mind. So far as malicious prosecution is concerned however, for the reasons given by Roch and Peter Gibson LJJ in Clark (see para 22 above), the Appellant’s conduct is not in any way causative of that tort. In any event I see force in Mr Murphy’s submission that if, because of the surprising lack of serious injury resulting from the assault, an award of GBP1,000 was appropriate for that assault, and if (possibly because the Appellant was accustomed to prison) he was only entitled to GBP7,500 for the period of custody between Christmas 1998 and May 1999, how can it be said that the Appellant has received proper compensation for ‘the humiliation’ or for the gratuitous violence and spraying of CS gas? So far as malicious prosecution is concerned, if GBP4,000 is the figure for basic damages, how does that compensate the Appellant for the fact that not only were lies told as a foundation to the prosecution, and not only were lies told at the criminal trial, but lies were told again at the civil trial? What then also about the alleged failure to take a breath test? The custody officer has been found to have made up the story that the Appellant refused that breath test. The custody officer is not a police officer who in the heat of the moment takes some action which is then covered up by false stories, a situation bad enough in itself; the custody officer is the officer appointed to protect the prisoner and for that officer to have been found to have fabricated a charge, or supported the fabrication of a charge, is more serious still.

[32] It seems to me that the figures at the bottom of the judge’s brackets, so far as basic damages are concerned, simply cannot be said to have compensated this Appellant for the way he was treated. Any reasonable jury should have appreciated that a failure to award something other than a substantial sum for aggravated damages would send out an entirely wrong message to the Respondent. The police officers humiliated the Appellant during the incident; they behaved in a high-handed, insulting, malicious and oppressive manner; those who were parties to the incident lied to found false charges, lied at the criminal trial and lied at the civil trial. The custody sergeant then fabricated or supported the fabrication of a story as well. No disciplinary proceedings of any kind have apparently resulted. No jury in my view could have awarded less than GBP10,000 as aggravated damages.

[33] As will appear from my citation from Thompson, this is not a case for exemplary damages.

[34] In the result I consider that the appeal should be allowed. I would increase the jury’s award of basic damages for malicious prosecution from GBP1,500 to GBP4,000 and award GBP10,000 by way of aggravated damages.

JUDGMENTBY-2: MOSES LJ:

JUDGMENT-2:
MOSES LJ:

I agree.

JUDGMENTBY-3: RICHARDS LJ:

JUDGMENT-3:
RICHARDS LJ:

I also agree.

Appeal allowed.

SOLICITORS:
Edwards Duthie; Legal Department, Metropolitan Police Service