KA-2024-000208 - [2025] EWHC 1964 (KB)

Counsel for the claimants here and below, George Murray, began by addressing ground 2.

Mr Murray submitted that the judge’s decision to withdraw the factual issue of PC Havers’ belief from the jury was wrong because there was a real issue on the evidence. He cited the approach taken by Ritchie J in Clark v Chief Constable of Merseyside [2023] EWHC 2565:

“40.

When considering what to leave to the jury in a civil action against the police, in my judgment the authorities require a Judge to consider the following 3 steps:

A pleaded issue of fact

Is there a relevant issue of fact between the parties identified in or arising from the pleadings?

Not agreed or uncontradicted

By the end of the evidence, is the identified relevant issue of fact no longer in issue because it is agreed or there is uncontradicted evidence determining it? If so, it is no longer an evidential issue and no longer for the jury.

A real issue on the evidence

By the end of the evidence, is there a real conflict of evidence relating to the identified relevant issue of fact? If so, then it must be left to the jury. However, if no reasonable jury could decide the issue in any other way than the obvious way, so it would be perverse and overturned on appeal if the jury decided the issue any other way, then there is no real issue to be left to the jury.”

In closing submissions at trial, Mr Murray had accepted that PC Havers had suspected the second claimant of child neglect but not that he believed the arrest to be necessary. In submissions before me he rightly emphasized the difference between those two states of mind.

At the trial, each side had invited the Judge to withdraw the issue from the jury but that was because each contended that their own desired outcome was the only rational outcome.

Mr Murray referred me back to the Judge’s findings of fact relating to the second claimant in some detail. He submitted that it would have been perverse for the jury to find that PC Havers subjectively believed the arrest to be necessary, alternatively that the issue should have been left to the jury. There was no oral evidence from PC Havers himself on the point, and the only relevant evidence of PC Robinson was that, as the Judge found, he and PC Havers had discussed the need to safeguard the siblings with their senior officers. But their conversation about the arrest was not recorded and did not feature in any contemporary record. The evidence also was inconsistent, because PC Robinson referred to a need to safeguard “the siblings”, while PC Havers when making the arrest just referred to “harm” but, in his MG11 the next day, referred to “physical injury to your child”, presumably meaning ABD. And although in the MG11 PC Havers purported to state what he had said to the second claimant when making the arrest, its contents are by no means the same as the previous day’s BWV transcript. For example, when making the arrest he referred to a need to prevent “harm” but in the MG11 he claimed to have referred to preventing “physical injury to your child”.

It was therefore not entirely clear, he submitted, precisely what reason PC Havers had for any belief.

Mr Murray also relied on the fact that the second claimant was not suspected of committing any assault himself but merely of failing to intervene to stop assaults by his wife. In those circumstances, he submitted, PC Havers could not have believed that the second claimant himself posed any risk to ABD.

Overall, Mr Murray submitted that the issue should have been left to the jury so that the evidence could be tested, just as it would have been if PC Havers had given oral evidence.

The respondent’s counsel Adam Clemens also appeared here and below. He invited me to uphold the Judge’s reasoning, in particular at paragraph 46 of the judgment quoted at [25] above. He also reminded me of the need for an appellate court to be cautious about revisiting decisions about the facts made by a Judge at first instance with the advantage of having heard the evidence. He submitted that it could not be supposed that cross-examination of PC Havers would have exposed a lack of belief. As the Judge said at paragraph 50 of his judgment, after PC Bell was cross-examined about her state of mind the claimants conceded that she did in fact have the necessary belief.

Turning to ground 1, Mr Murray accepted at trial that the Police were right to treat the safety of the children as of paramount importance and that it was necessary for them to protect the integrity of their investigation. He also accepted that it was necessary for the first claimant to accompany PC Bell to the police station. The issue is whether there were reasonable grounds for believing that it was necessary to arrest her to ensure that she did so.

Mr Murray submits that there were no reasonable grounds for that belief. There was no reason to believe that the first claimant would not have attended voluntarily, and the belief was formed without PC Bell considering whether a voluntary interview was a viable alternative. At the time of arrest the officers knew that the first claimant was a police officer “of impeccable record”, she had suggested a voluntary interview, they let her use her phone to call her supervising officer and PC Gavin spoke to her too, she was allowed to call a relative to come and look after the children, she gave consent to the social worker for temporary care of ABD and the officers did not see fit to handcuff her or to seize her phone or her computer.

In short, Mr Murray submitted, the arrest did not create any advantage which could not also have been created by taking the first claimant to the police station for a voluntary interview.

Mr Murray also submits that PC Bell failed to consider that the arrest process might be distressing to the other two children who were present. Her actions were in contrast to those of the social worker Ms Hunt, who did not take the option of using any coercive powers for the children’s protection. There was no evidence that arresting the first claimant had any benefit for the children or the investigation which could outweigh the risk of harm to the children and to the first claimant herself.

As to ground 3, Mr Murray submitted that the same points applied with even greater force. So, even if PC Havers subjectively believed the arrest to be necessary, there were no objectively reasonable grounds for such a belief. As in the case of the first claimant, there was no reason to believe that he would not have co-operated in full if he had been offered a voluntary interview under caution. But in addition, he was not a person who was suspected of causing injury to ABD. There was no evidence that the police considered the option of allowing him to return home while the first claimant was interviewed.

Mr Clemens responded on grounds 1 and 3 together. He relied on Hayes for the propositions that (1) when deciding whether there were reasonable grounds for an officer’s belief that an arrest was necessary, the Court does not use hindsight and (2) that the test is not a “public law” test such as would be applied in a claim for judicial review, whereby (for example) a failure to have regard to a relevant factor could render the decision unlawful.

That being so, Mr Clemens submitted that grounds 1 and 3 were doomed to failure by the Judge finding, as he was entitled to, that the reasons for the arrests were evidence-based and genuine. There was unchallenged evidence that the officers had been told about allegations of child neglect and assault. They rightly viewed the children’s safety as paramount. Those matters bolstered their belief that arrests were necessary to protect the children and to ensure that the suspects were interviewed promptly and without any collusion.

Mr Clemens rejected the suggestion that consideration of Code G should have led to a different outcome. Application of the Code does not permit this Court to apply hindsight or a public law test. If the police had adopted the alternative course of conducting voluntary interviews but then arresting the claimants, for any reason, at the police station, they might have been criticised for subterfuge. In Hayes it was pointed out that it “would not be honest for an officer to invite a person to attend a voluntary interview if he intended to arrest him the moment he elected to leave” and also that even if a person could be arrested if they stopped co-operating with an interview, that would lead to a delay in continuing the interview.