Parker v Chief Constable of Essex Police  EWCA Civ 2788
Nominal damages (Barrymore) "In the early hours of 31 March 2001, Michael Parker (a celebrity entertainer who is better known by his stage name, Michael Barrymore) returned to his home with eight guests. ... In relation to Mr Parker, that arrest was to be effected by Det. Con. Susan Jenkins who had played a central role in the re-investigation and was well aware of the evidence: she believed she had reasonable grounds both to suspect Mr Parker of committing an offence and to conclude that it was necessary to effect his arrest. In the event, she was detained in traffic and a surveillance officer (P.C. Cootes) was ordered to effect the arrest, which he did. ... For these reasons, I would conclude that Stuart-Smith J was correct to conclude that there were reasonable grounds both to suspect Mr Parker of committing an offence and that it was necessary to arrest him. Equally, however, I have no doubt that had things been done as they should have been done (to quote Baroness Hale in Kambadzi), a lawful arrest would have been effected. Thus, I would allow this appeal and, in answer to the issue posed by the Master, declare that Mr Parker is entitled to nominal damages only."
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Court of Appeal
Parker v Chief Constable of Essex Police
 EWCA 2788 (Civ)
2018 Nov 20, 21; Dec 12
Sir Brian Leveson P, Hallett, Ryder LJJ
Damages— Measure of damages— False imprisonment— Claimant arrested on suspicion of murder— Intended arresting officer delayed and unable to effect arrest— Alternative officer carrying out arrest— Arrest admitted to be unlawful due to arresting officer not personally having required reasonable grounds for suspicion— Whether claimant entitled to substantial damages— Test for whether substantial damages to be awarded— Police and Criminal Evidence Act 1984 (c 60), s 24(2) (as substituted by Serious Organised Crime and Police Act 2005 (c 15), s 110(1))
Following a gathering at the claimant’s house a guest was found in the swimming pool unconscious and not breathing. He was taken to hospital but was later pronounced dead. Although an initial police murder investigation did not result in any charges being brought, a subsequent re-investigation resulted in a decision by the defendant’s police force to carry out simultaneous arrests of the claimant and two others who had been present at the gathering. The arrest was to be carried out by a detective constable who had played a central role in the re-investigation, was well aware of the evidence and who believed that she had reasonable grounds both to suspect the claimant of committing an offence and to conclude that it was necessary to effect his arrest. However, she was detained in traffic and a surveillance officer who was present at the scene was ordered to, and did, effect the arrest of the claimant instead. Following the arrests, no material additional information came to light and the Crown Prosecution Service decided that there was insufficient evidence for any charges to be brought. The claimant brought a claim for substantial damages for false imprisonment. The defendant admitted that the arrest was unlawful and that the claimant had been falsely imprisoned, because the arresting officer had not personally had the reasonable grounds required by section 24(2) of the Police and Criminal Evidence Act 1984 for the necessary suspicion to justify an arrest, but contended that only nominal damages were payable because, but for the delay experienced by the detective constable, the claimant could and would have been lawfully arrested. Allowing the claim, the judge held that while the detective constable could lawfully have arrested the claimant, he was none the less entitled to substantial damages for false imprisonment because, had he not been unlawfully arrested by the actual arresting officer, he would in fact have been unlawfully arrested by another of the surveillance officers present on the scene that day who, similarly, had not had the requisite information to form reasonable beliefs.
On the defendant’s appeal—
Held, appeal allowed. The appropriate “counter-factual” scenario to be considered by the court when deciding whether substantial damages should be awarded was the position as it would have been had things been done as they should have been done. Substantial damages would not be awarded if, had the defendant acted lawfully, the claimant would have been detained in any case, because no harm would ultimately have been caused. In the present case, the test was therefore not what would in fact have happened if the arresting officer had not arrested the claimant, but what would have happened had it been appreciated what the law required. On that counter-factual scenario the court did not have to assume the lawfulness of the substantive detention but it did have to assume the lawfulness of the procedure whereby the detention was effected. The substantive requirement was compliance with section 24 of the Police and Criminal Evidence Act 1984. The procedural requirement was that the arresting officer personally had reasonable grounds for the necessary suspicion. It was clear that that procedural requirement would have been met had it been appreciated by either the detective constable or her chief investigating officer, and either the arrest would have awaited the detective constable or she would have sufficiently briefed the arresting officer or another officer present at the scene. Accordingly, and since the judge had been entitled to conclude that there were reasonable grounds to suspect the claimant of an offence and a reasonable belief in the necessity of arrest, the claimant was not entitled to substantial damages but only to nominal damages (paras 100 104–105, 107, 108, 119, 131–132, 133, 134).
R (WL (Congo)) v Secretary of State for the Home DepartmentB, SC(E), R (SK (Zimbabwe)) v Secretary of State for the Home Department B, SC(E) and Bostridge v Oxleas NHS Foundation Trust (2015) 18 CCLR 144, CA applied.
Decision of Stuart-Smith JM reversed.
Lord Faulks QC, John Beggs QC and Cecily White (instructed by DAC Beachcroft) for the defendant.
Hugh Tomlinson QC and Lorna Skinner (instructed by McAlinneys Solicitors, Wakefield) for the claimant.