Rowlands v CC of Merseyside Police [2006] EWCA Civ 1773

Mrs Rowlands was unlawfully arrested, handcuffed and prosecuted after complaining about noisy neighbours. A jury found the police conduct wrongful and dishonest. The Court of Appeal held she was entitled to aggravated and exemplary damages, clarified guidance in Thompson, and confirmed exemplary damages can be awarded vicariously against a chief constable.

Facts

In August 2002, Mrs Susan Rowlands lived at 90 Eastham Road, New Ferry, opposite troublesome neighbours at No. 89 who held a loud party on 16 August. After repeated complaints, two Merseyside police officers, PCs Patterson and Marshall, attended. Following their second visit to No. 89, PC Patterson went to No. 90 and an altercation ensued. Mrs Rowlands was arrested in front of her children, handcuffed, taken to a police car, and then to Birkenhead police station where she was detained for about an hour and a half.

She alleged that the pain from the handcuffs was excruciating, that she was dragged backwards by them, and that PC Patterson deliberately tugged the cuffs in the car to cause further pain. She was later charged with assaulting a constable in the execution of his duty and obstructing a constable in the execution of his duty. At her March 2003 trial before Liverpool magistrates, PCs Patterson and Marshall gave evidence for the prosecution, but the magistrates rejected the police evidence and acquitted her of the remaining charge of obstructing a constable.

Mrs Rowlands issued proceedings in the Liverpool County Court against the Chief Constable of Merseyside Police, claiming damages for assault, false imprisonment and malicious prosecution, including aggravated and exemplary damages.

Issues

The principal issues before the Court of Appeal concerned:

• Whether the trial judge was entitled to treat £2,500 for malicious prosecution as agreed basic damages and withdraw that head of damage from the jury.
• Whether the existence of an agreed award for psychiatric harm precluded a further award of aggravated damages, due to risk of double recovery.
• Whether the judge was wrong to withdraw from the jury the questions of aggravated and exemplary damages, including whether the evidence could support a finding of “oppressive, arbitrary and unconstitutional” conduct.
• Whether exemplary damages can lawfully be awarded against a chief constable whose liability is solely vicarious under section 88 of the Police Act 1996, and if so, the proper level of any such award having regard to Thompson v Commissioner of Police of the Metropolis.

Judgment

The jury’s findings at trial

The claim was tried before His Honour Judge MacMillan and a jury. The jury answered five questions as follows:

1. Have the police proved that it is more likely than not that P.C. Patterson thought that Mrs. Rowlands was likely to cause a breach of the peace? No

2. Have the police proved that it is more likely than not that the use of handcuffs by P.C. Patterson to restrain Mrs. Rowlands was reasonable? No.

3. Has Mrs Rowlands proved that it is more likely than not that she was dragged backwards by P.C. Patterson using the handcuffs? Yes.

4. Has Mrs. Rowlands proved that it is more likely than not that P.C. Patterson yanked the handcuffs in the back of the car to cause her pain? Yes.

5. Has Mrs. Rowlands proved that it is more likely than not that the account of the matter given to the Magistrates’ Court by P.C. Patterson was deliberately false? Yes.

It followed that her claim was made out in full.

Counsel then agreed £3,000 for personal injury, pain and suffering (£1,000 for wrist injury and £2,000 for psychiatric harm). £850 for false imprisonment and £2,500 for malicious prosecution were also treated as agreed figures. The judge refused to allow claims for aggravated or exemplary damages to go to the jury, holding that aggravated damages would cause over-compensation given the psychiatric award, and that the case was not appropriate for exemplary damages.

Damages for malicious prosecution

On appeal, Moore-Bick LJ accepted that the exchanges at trial led the judge reasonably to understand that £2,500 was agreed as basic damages for malicious prosecution. He reviewed the dialogue between counsel and the judge, noting in particular:

The Judge: Well, £2,500 was the figure I have written down.

Mr. Gow: I would not argue with that, Your Honour.

Later, when the judge summarised the figures, and asked whether there was anything for the jury to decide, Mr Gow did not say that malicious prosecution damages remained for the jury’s assessment. Moore‑Bick LJ concluded that counsel had, in fact, agreed £2,500 as the award for malicious prosecution, even if that was not his subjective intention. In light of the Thompson guidelines, any jury award would not have been significantly higher. The Court therefore did not disturb that figure.

Aggravated damages

Moore‑Bick LJ accepted that there is a danger of double recovery where a claimant receives both psychiatric injury damages and aggravated damages, but rejected the idea that an award for psychiatric harm automatically excludes aggravated damages. He emphasised the compensatory nature of aggravated damages, citing Thompson:

“. . . . . there can be a penal element in the award of aggravated damages. However they are primarily to be awarded to compensate the plaintiff for injury to his proper pride and dignity and the consequences of his being humiliated. This injury which is made worse for the plaintiff because it is more difficult to excuse when the malicious motives, spite or arrogance on the part of the police: see Rookes v Barnard …”

He analysed the medical evidence of persistent psychiatric harm, noting that both experts were addressing enduring mental health consequences (PTSD or adjustment disorder). Those harms were distinct from the immediate humiliation, injury to pride and dignity, and feelings of anger and resentment caused by an unjustified arrest, humiliating treatment, and a dishonest prosecution. Those latter harms are the proper subject of aggravated damages.

He held that the judge was wrong to withdraw aggravated damages from the jury, though any directions should have warned against compensating twice for the same injury. Applying the Thompson guidelines himself, and recognising that the basic damages total (£6,350) was modest and perhaps low, he fixed aggravated damages at £6,000, noting that a higher multiple would only be justified in exceptional circumstances.

Exemplary damages and vicarious liability

The Court considered three questions: (i) whether the evidence could support an award of exemplary damages; (ii) whether exemplary damages can be awarded against a chief constable who is only vicariously liable; and (iii) the appropriate amount.

(i) Oppressive, arbitrary and unconstitutional action

Moore‑Bick LJ held that there was clearly evidence capable of supporting a finding that PC Patterson’s behaviour amounted to “oppressive, arbitrary and unconstitutional” action within Lord Devlin’s first Rookes v Barnard category. He referred to Holden v Chief Constable of Lancashire and stated that wrongful arrest by a police officer can, of itself, fall within that category.

The jury had accepted evidence that PC Patterson:

• Physically restrained and handcuffed Mrs Rowlands without legitimate reason and placed her in a police car.
• Deliberately caused unnecessary pain by tugging on the handcuffs in the car.
• Procured her continued detention by giving false information to the custody sergeant, leading to a charge he knew she had not committed.
• Gave deliberately false evidence in the magistrates’ court to secure her conviction.

It was for the jury to decide whether that misconduct justified exemplary damages, but it plainly could. The judge’s personal view that the case was not exceptional was irrelevant. The Court therefore held that the judge was wrong to withdraw exemplary damages from the jury.

(ii) Whether exemplary damages can be awarded vicariously against a chief constable

Section 88 of the Police Act 1996 provides:

“88.—(1) The chief officer of police for a police area shall be liable in respect of torts committed by constables under his direction and control in the performance or purported performance of their functions in like manner as a master is liable in respect of torts committed by his servants in the course of their employment, and accordingly shall in respect of any such tort be treated for all purposes as a joint tortfeasor.”

Moore‑Bick LJ noted that since the Police Act 1964, it had been universally assumed that where an officer’s conduct justifies exemplary damages, judgment including such damages can be entered against the chief constable, and that actions are commonly brought against the chief constable alone.

He reviewed the difficulties raised by exemplary damages in cases of joint liability and vicarious liability, drawing on Broome v Cassell & Co Ltd and the observations of Lord Hailsham and Lord Reid about avoiding excessive punishment and taking account of individual defendants’ culpability and means. He also considered the passages in Thompson emphasising that the defendant is usually a chief officer of police, and that exemplary damages should have a “lesser role” but may still be appropriate:

“. . . . . 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. . . . .

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 wrongdoer, but his “employer.” . . . . “

He noted Lord Woolf’s further statement in Thompson:

“In the case of exemplary damages we have taken into account the fact that the action is normally brought against the chief officer of police and the damages are paid out of police funds for what is usually a vicarious liability for the acts of his officers in relation to which he is a joint tortfeasor: see now section 88 of the Police Act 1996. In these circumstances it appears to us wholly inappropriate to take into account the means of the individual officers except where the action is brought against the individual tortfeasor.”

Moore‑Bick LJ treated these observations as reflecting the view that an exemplary award against a chief constable expresses “vigorous disapproval” of the police force as an institution, and is not confined by the individual officer’s means.

Mr Wells relied on Lord Scott’s speech in Kuddus v Chief Constable of Leicestershire Constabulary, arguing that punishing a purely vicarious defendant is contrary to principle. Moore‑Bick LJ accepted that strong arguments of principle exist, and referred to the Law Commission’s 1997 Report on Aggravated, Exemplary and Restitutionary Damages. However, he stressed that exemplary damages rest on policy, not strict principle. He concluded that, as a matter of policy, the courts should be able to impose punitive awards on those with public responsibility for police conduct, without being constrained by junior officers’ limited means.

He held that a substantial award of exemplary damages can be made against a chief officer of police under section 88, in accordance with Thompson, and that the long-standing assumption to that effect should not be disturbed. The submission that exemplary damages cannot lawfully be awarded against the Chief Constable was therefore rejected.

(iii) The exemplary award

The parties agreed that the Court of Appeal should itself assess exemplary damages. Moore‑Bick LJ noted that an exemplary award is avowedly punitive, but that compensatory (basic and aggravated) damages already have a punitive element. The total award must not be excessive.

With £6,000 aggravated damages, the total compensatory sum reached £12,350. Moore‑Bick LJ considered that the police conduct warranted “significant punishment”, not only because the arrest was unjustified and carried out in an arrogant and abusive way, but also because of the persistent attempt to justify it through false evidence intended to secure conviction. He found £12,350 inadequate as punishment and therefore appropriate to add exemplary damages.

Referring to Thompson, where Lord Woolf suggested exemplary damages should rarely be less than £5,000 (about £6,000 in current values), and to the larger awards of £25,000 and £15,000 in Thompson and Hsu, he held that the police behaviour in those cases was more serious, involving greater violence. An exemplary award of £7,500 was therefore appropriate.

Implications

The Court allowed the appeal and increased the overall damages to £19,850 by adding £6,000 aggravated and £7,500 exemplary damages to the agreed basic figures. Richards and Ward LJJ agreed.

The decision has several important implications:

• Aggravated damages remain available even where separate psychiatric injury damages are awarded, provided the court avoids double compensation. Humiliation, injury to dignity and resentment caused by oppressive policing are distinct heads of compensatory loss.
• The Thompson guidelines continue to structure awards for false imprisonment and malicious prosecution, and to set indicative scales for aggravated and exemplary damages in police misconduct cases.
• Wrongful arrest and related misconduct by police may amount to “oppressive, arbitrary and unconstitutional” action capable of justifying exemplary damages, especially where coupled with deliberate dishonesty in procuring and maintaining a prosecution.
• Exemplary damages can lawfully be awarded against a chief constable whose liability is vicarious under section 88 of the Police Act 1996, as a matter of policy aimed at ensuring adequate punishment and institutional deterrence, without regard to individual officers’ means.

Verdict: Appeal allowed; the Court of Appeal held that aggravated and exemplary damages should have been left to the jury, assessed them itself at £6,000 (aggravated) and £7,500 (exemplary), and entered judgment for Mrs Rowlands for a total of £19,850.

Source: Rowlands v CC of Merseyside Police [2006] EWCA Civ 1773