Judgments - Ashley (Fc) and Another (Fc) V Chief Constable of Sussex Police

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19.  I have found it helpful to consider also the somewhat analogous defence of consent. Consent is, within limits, a defence to a criminal charge of assault. It is relevant in physical contact games but is also frequently put forward as a defence where allegations of sexual assault, whether of rape or less serious varieties, are made. If the consent relied on had not been given but was honestly believed by the assailant to have been given, the accused would be entitled, as I understand it, to an acquittal. An honest belief that could not be rebutted by the prosecution would suffice. But why should that suffice in a tort claim based upon the sexual assault? It would surely not be a defence in a case where the victim of the assault had neither expressly nor impliedly consented to what the assailant had done for the assailant to say that he had honestly albeit mistakenly thought that she had, unless, at the very least, the mistake had been a reasonable one for him to have made in all the circumstances. So, too, with self-defence.

20.  I would, therefore, dismiss the Chief Constable’s appeal against the Court of Appeal’s adoption of solution 2. It has not been contended on behalf of the Ashleys that solution 3 might be the correct solution in a civil case but, speaking for myself, I think that that solution would have a good deal to be said for it, as appears to have been the view also of the Master of the Rolls (see paras 63 to 78 of his judgment). I would start with the principle that every person is prima facie entitled not to be the object of physical harm intentionally inflicted by another. If consent to the infliction of the injury has not been given and cannot be implied why should it be a defence in a tort claim for the assailant to say that although his belief that his victim had consented was a mistaken one nonetheless it had been a reasonable one for him to make? Why, for civil law purposes, should not a person who proposes to make physical advances of a sexual nature to another be expected first to make sure that the advances will be welcome? Similarly, where there is in fact no risk or imminent danger from which the assailant needs to protect himself, I find it difficult to see on what basis the right of the victim not to be subjected to physical violence can be set at naught on the ground of mistake made by the assailant, whether or not reasonably made. If A assaults B in the mistaken belief that it is necessary to do so in order to protect himself from an imminent attack by B, or in the mistaken belief that B has consented to what is done, it seems to me necessary to enquire about the source of the mistake. If the mistake were attributable in some degree to something said or done by B or to anything for which B was responsible, then it seems to me that the rules relating to contributory fault can come into play and provide a just result. If the mistake were attributable in some degree to something said to A by a third party, particularly if the third party owed a duty to take care that information he gave was accurate, the rules relating to contributions by joint or concurrent tortfeasors might come into play. But I am not persuaded that a mistaken belief in the existence of non-existent facts that if true might have justified the assault complained of should be capable, even if reasonably held, of constituting a complete defence to the tort of assault. However, and in my view, unfortunately, solution 3 has not been contended for on this appeal, its pros and cons have not been the subject of argument, and your Lordships cannot, therefore, conclude that it is the correct solution. But I would, for my part, regard the point as remaining open.

Issue 2: Should the further prosecution of the assault and battery claim be barred?

21.   It is submitted on behalf of the Chief Constable that since the further prosecution of the assault and battery claim and an eventual finding of liability cannot, in view of the concession on damages that the Chief Constable has made, add anything at all to the quantum of compensatory, including aggravated, damages that the Ashleys will succeed in recovering, the claim should not be allowed to proceed. This issue requires some attention to the legitimate purposes for which an assault and battery claim can be made and for which, if liability is established, damages can be awarded against the Chief Constable.

22.  The claim forms issued by the Ashleys simply seek damages for the torts giving rise to the deceased Mr Ashley’s death. These torts include, of course, the assault and battery tort. The only legitimate purpose for which Fatal Accident Act damages can be claimed and awarded for this tort is, in my opinion, compensatory. The damages are awarded for a loss of dependency. But the purposes for which damages could have been awarded to the deceased Mr Ashley himself, if he had not died as a result of the shooting, are not confined to a compensatory purpose but include also, in my opinion, a vindicatory purpose. In Chester v Afshar [2005] 1 AC 134, para 87 Lord Hope of Craighead remarked that “The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached” and that unless an infringed right were met with an adequate remedy, the duty would become “a hollow one, stripped of all practical force and devoid of all content". So, too, would the right. How is the deceased Mr Ashley’s right not to be subjected to a violent and deadly attack to be vindicated if the claim for assault and battery, a claim that the Chief Constable has steadfastly and consistently disputed, is not allowed to proceed? Although the principal aim of an award of compensatory damages is to compensate the claimant for loss suffered, there is no reason in principle why an award of compensatory damages should not also fulfil a vindicatory purpose. But it is difficult to see how compensatory damages can could ever fulfil a vindicatory purpose in a case of alleged assault where liability for the assault were denied and a trial of that issue never took place. In Daniels v Thompson [1998] 3 NZLR 22, 70 Thomas J observed that:

“Compensation recognises the value attaching to the plaintiff’s interest or right which is infringed, but it does not place a value on the fact the interest or right ought not to have been infringed at all".

In a later case, Dunlea v Attorney General [2000] 3 NZLR 136, Thomas J drew a distinction between damages which were loss-centred and damages which were rights-centred. Damages awarded for the purpose of vindication are essentially rights-centred, awarded in order to demonstrate that the right in question should not have been infringed at all. In Attorney General of Trinidad and Tobago v Ramanoop [2006] 1 AC 328 the Privy Council upheld an award of vindicatory damages in respect of serious misbehaviour by a police officer towards the claimant. These were not exemplary damages; they were not awarded for any punitive purpose. They were awarded, as it was put in Merson v Cartwright [2005] UKPC 38, another case in which the Privy Council upheld an award of vindicatory damages, in order “to vindicate the right of the complainant … to carry on his or her life in the Bahamas free from unjustified executive interference, mistreatment or oppression” (para 18). The rights that had been infringed in the Ramanoop case and in Merson v Cartwright were constitutional rights guaranteed by the respective constitutions of the countries in question. But the right to life, now guaranteed by article 2 of the European Convention on Human Rights and incorporated into our domestic law by the Human Rights Act 1998, is at least equivalent to the constitutional rights for infringement of which vindicatory damages were awarded in Ramanoop and Merson v Cartwright. It is, of course, the case that if self-defence can be established as an answer to the Ashleys’ claims of tortious assault and battery no question of vindicatory damages will arise. But, unless the claim can be said to have no reasonable prospect of success, that is no reason why the assault and battery claim should not be permitted to proceed to a trial.

23.  The history of this litigation to date justifies, in my opinion, the drawing of two inferences. One is that the Chief Constable has gone to considerable lengths to try to avoid the possibility of an adverse finding of liability on the assault and battery claim. He has conceded liability for all compensatory damages flowing from the shooting. He has conceded liability for negligence in relation to the pre-shooting and post-shooting events, but not, as I understand it, negligence by PC Sherwood in relation to the actual pulling of the trigger. When the Ashleys made clear that they sought aggravated damages, he conceded those in relation to his negligence admissions notwithstanding that they would not normally be available in a negligence claim. I draw the inference that the Chief Constable is determined to avoid, if he can, a trial of liability on the assault and battery claim. The other compelling inference is that the Ashleys are determined, if they can, to take the assault and battery case to trial not for the purpose of obtaining a larger sum by way of damages than they have so far become entitled to pursuant to the Chief Constable’s concessions, but in order to obtain a public admission or finding that the deceased Mr Ashley was unlawfully killed by PC Sherwood. They want a finding of liability on their assault and battery claim in order to obtain a public vindication of the deceased’s right not to have been subjected to a deadly assault, a right that was infringed by PC Sherwood. They have pleaded a case that, if reasonably arguable on the facts, cannot be struck out as being unarguable in law. Why, therefore, should they be denied the chance to establish liability at a trial? It is open to the Chief Constable to avoid a trial by admitting liability on the assault and battery claim. The Court cannot be required to entertain an action where there is nothing to decide (see R (Rusbridger) v Attorney General [2004] 1 AC 357). But the Chief Constable declines, as he is entitled to do, to admit liability on the assault and battery claim. That being so, I can see no ground upon which it can be said that it would be inappropriate for the claim to proceed for vindicatory purposes. Whether, if liability is established, the vindication should be marked by an award of vindicatory damages or simply a declaration of liability is, in my opinion, unimportant.

24.  It is contended also that the continued prosecution of the assault and battery claim should not be permitted because it would amount to an unlawful collateral attack on PC Sherwood’s acquittal and would infringe the rule against double jeopardy. I do not regard either of these contentions as reasonably arguable. PC Sherwood was entitled to be acquitted because the prosecution were unable to lead evidence probative of a rebuttal of his assertion that he had believed himself to be in imminent danger of a deadly attack and in that belief had shot James Ashley in self-defence. But the criteria for self-defence that constitute an answer to a criminal charge of assault will not necessarily suffice as an answer in a civil claim for tortious assault. Honest belief in the need for self-defence is not enough. In a civil case the belief must at least be reasonably held and, it may be, even that would not suffice to establish the defence. And in a civil case the onus of establishing the requisite criteria rests on the defendant. Accordingly, an acquittal on a criminal charge of assault based on an assertion by the defendant of the need for self-defence does not mean that the defendant did not unlawfully assault the victim. It does mean that the prosecution cannot prove, as they must prove if the defendant is to be convicted, that he did. Both for that reason and because there is a difference between the criteria for self-defence required in a criminal trial and the criteria for that defence required in a civil trial, an acquittal in a criminal trial does not demand a verdict for the defendant in a civil trial. This may seem anomalous but, in my opinion, for the reasons I have already given, it is not. If a defendant’s acts in the believed need for self-defence are a reasonable and proportionate response to the facts as he honestly believed them to be, it would seem to me quite wrong for the criminal law to impose penal sanctions on him. But if an individual is attacked because the assailant mistakenly believes that the attack is necessary as an act of self-defence and the belief although honestly held is unreasonable in all the circumstances, it would seem to me a travesty for the victim to have to be told that the attack was a lawful one. The prosecution of the Ashleys’ civil action based on assault and battery is not a collateral attack on PC Sherwood’s acquittal. It raises issues different from those on which the criminal charges against PC Sherwood turned, issues which were not relevant to and could not be raised in the criminal trial. Nor will the prosecution of the civil action place PC Sherwood in double jeopardy. There are no penal consequences for adverse findings in the civil courts.

25.  Moreover, at no stage in the proceedings so far has the Chief Constable offered to pay or accepted liability for the Ashleys’ legal costs incurred in connection with their claim based on assault and battery. On the contrary, he seeks his costs and, as counsel for the Ashleys has pointed out, he will, if the further prosecution of the assault and battery claim is barred, be able to recoup, from the damages he has agreed to pay, the costs of that part of the action that he seeks to avoid. I regard the costs implications of the bar on the further prosecution of the assault and battery claim that is sought by the Chief Constable as a matter of relatively minor importance in the reasons why the bar should not be imposed, but, nonetheless, those implications seem to me hardly consistent with justice.

26.  It is contended also that, PC Sherwood having been acquitted, the further prosecution in a civil court of the assault and battery claim would be “manifestly unfair” to him (Hunter v Chief Constable of the West Midlands Police [1982] AC 529, 536) and would therefore infringe his right to a fair trial guaranteed under article 6 of the Convention. Strasbourg jurisprudence does not support this contention (see Ringvold v Norway (Application No 34964/97) (unreported) 11 May 2003). Moreover, the article 6 rights of an acquitted defendant cannot extinguish the article 6 rights of the alleged victim of the assault to a fair trial of his or her civil claim in tort. There is no jurisprudence of the Strasbourg court to support such a one-sided and unfair consequence.

27.  As to the prospects of success of the Ashleys’ assault and battery claim, they would, I think, be gloomy if solution 1 were, as the Chief Constable contended, the right answer to issue 1. But if it is right, as I think it is, that self-defence in a tortious assault and battery claim requires not only an honestly held belief but also, at the very least, a reasonably held belief in the existence of the facts said to justify the action taken as being reasonable and proportionate in the believed circumstances, it is, in my opinion, impossible to conclude that the Ashleys’ pleaded case has no real prospect of success. The deceased Mr Ashley, while naked and unarmed, was shot by PC Sherwood within seconds of the latter’s entry at 4.20am or thereabouts into the bedroom. The question whether in all the circumstances it was reasonable for PC Sherwood to have believed that the figure facing him was armed and was presenting a deadly danger is, to me at least, an open one on the facts.

28.  There is one further issue, referred to in para 96 of the written case prepared by counsel for the Chief Constable, that deserves attention. Section 1(1) of the 1934 Act provides that “all causes of action subsisting against or vested in [a person before his death] shall survive against, or, as the case may be, for the benefit of, his estate …” (emphasis added). The object of the 1934 Act was explained by Lord Wright in Rose v Ford [1937] AC 826, 841

“The purpose … was to abolish in a special and particular way the rule preventing the prosecution of a claim in tort for personal injuries where the person who would otherwise be plaintiff or defendant in an action has died. The rule was expressed in the maxim ‘actio personalis moritur cum persona’”

The rule had come to apply, as Lord Wright explained, to “what were called ‘purely’ personal wrongs". But there were a number of exceptions to the causes of action freed from this rule. The exceptions covered what perhaps might be described as “particularly” personal wrongs. The excepted causes of action were defamation, seduction, enticing away a spouse, or adultery. The latter three excepted causes of action were later removed by amendment but a cause of action for defamation remains an exception and cannot survive the death of the alleged defamer or the defamed. In addition, the 1934 Act barred, in relation to any cause of action that had survived for the benefit of the estate of a deceased person, the award of any exemplary damages. This is the background context to the submission that, in view of the concessions on damages made by the Chief Constable, it cannot be said that the estate of the deceased Mr Ashley can derive any benefit from the further prosecution of the assault and battery cause of action. If tortious liability were to be established and a declaration to that effect were to be made, the declaration would be of no benefit to the estate. It was not, but might have been, submitted that an action prosecuted for the purpose not of compensation but of vindicating the deceased’s allegedly infringed rights is an action of a particularly personal nature, akin to those that were expressly excepted in the 1934 Act, and that vindicatory damages, although not punitive in intent, are, in common with exemplary damages, extra-compensatory in character. So the question is raised whether it is right to allow a cause of action that has survived under the 1934 Act to be prosecuted for, as is to my mind the case here, reasons that are, essentially non-compensatory. There seems to me no doubt at all but that the assault and battery cause of action, with the other causes of action vested in the deceased at the time of his death, did survive his death pursuant to the 1934 Act. In Attorney General v Canter [1939] 1 KB 318 the Court of Appeal declined to restrict the literal breadth of the words “all causes of action” in section 1(1) (see pp 328 and 333 per Sir Wilfrid Greene MR). But if the cause of action did survive the death it remains vested in the estate and James Ashley senior, representing the estate, is prima facie entitled to prosecute it. He, in my opinion, is entitled to be the judge of whether it is for “the benefit of the estate” to pursue the action. In Re Chase [1989] 1 NZLR 325 the New Zealand Court of Appeal declined to allow to proceed an action for assault and battery against the police where the victim of the alleged assault had died. In New Zealand section 3(1) of the Law Reform Act 1936 is to the same effect as section 1(1) of our 1934 Act but other statutory provisions in force in New Zealand made it impossible for the action brought on behalf of the deceased’s estate to proceed as an action for damages, whether compensatory, exemplary or nominal. A declaration was the only possible form of relief that could have been claimed or granted. So the question was raised whether the assault and battery claim could survive the death of the victim. Could its post-death prosecution be said to be “for the benefit of the estate"? As to that Cooke P (as he then was) thought that a declaration that the deceased had been the victim of high handed and oppressive police conduct “might be some solace or satisfaction to [his] family” and, at p 332, that

“it would be narrow and excessively legalistic to treat this as not a benefit to the estate. The law need not be so materialistic as to treat pecuniary benefit as the only kind of benefit which it will recognise.”

He was, therefore, not prepared to rule that the cause of action had not survived the death. But he went on to consider whether the desired declaration would be granted. He said this, at p 334:

“the court would have jurisdiction to declare, in an action brought by the personal representative of a deceased person, that the death was caused by a grave violation of his rights as a citizen. But it is essentially a discretionary jurisdiction, to be exercised obviously with full care and, as I see it, only in exceptional cases”

He concluded, p 335, that

“this is not such an exceptional case as to justify the court in embarking, under the declaratory jurisdiction, into an inquiry into the death of the deceased”

The other members of the court agreed with that conclusion.

29.  My Lords I would, in respectful agreement with Cooke P, decline to conclude that if an action that has survived under the 1934 Act is pursued for a vindicatory purpose it is not being pursued “for the benefit of the estate". There is no bar in this jurisdiction comparable to the statutory bar in New Zealand that would have prevented the action there from being pursued for vindicatory damages. The Chief Constable has conceded compensatory damages. He has not conceded vindicatory damages and he cannot do so unless he concedes liability on the assault and battery claim. Nor, in my opinion, is it possible at this stage in the litigation to be certain whether or not at the conclusion of a trial of liability a declaration to the effect that the deceased Mr Ashley had been killed by a tortious assault, would be made.

30.  For all these reasons I would dismiss this appeal with costs.

LORD RODGER OF EARLSFERRY

My Lords,

31.  I gratefully adopt the full account of the facts and issues given by my noble and learned friend, Lord Scott of Foscote.

32.  On 15 January 1998, in the course of an operation organised and conducted by Sussex Police, PC Christopher Sherwood shot and killed James Ashley (“the deceased”).

33.  In January 2000 the deceased’s son, James Ashley Junior, raised an action against the Chief Constable of Sussex Police for damages arising out of his death. Presumably he brought the action, by virtue of section 2(2) of the Fatal Accidents Act 1976 (“the 1976 Act”), because no action had been brought by an executor or administrator.

34.  At some point, the deceased’s parents, Mrs Eileen Ashley and Mr James Ashley senior were appointed the administrators of his estate. They began another action against the Chief Constable in October 2002. In part, by virtue of section 1 of the Law Reform (Miscellaneous Provisions) Act 1934 (“the 1934 Act”), they sought damages for, inter alia, battery (trespass to the person) and, in particular, for the deceased’s pain and suffering in the short interval between the moment when he was shot and the moment when he died.

35.  In the same action, by virtue of the Fatal Accidents Act 1976, on behalf of the dependants of the deceased, Mr and Mrs Ashley claimed damages for loss which they had suffered as a result of the deceased’s death. Mrs Ashley died in November 2004, before the hearing in the Court of Appeal and, as administrator of her estate, Mr Ashley maintains the claim vested in her estate.

36.  At one stage, therefore, there appear to have been two actions in which claims were made under the Fatal Accidents Act 1976, even though section 2(3) provides that not more than one action is to lie in respect of the same subject matter of complaint. But the claims are now included in the one action. So nothing of substance turns on the point - but it explains why there are claims both by the deceased’s son and by the administrators on behalf of the dependants.

37.  The deceased’s son and father are the respondents in the appeal.

38.  The claimants proceeded on the basis that the deceased’s death “was caused by the negligence, and/or in the alternative trespass to the person, and/or in the alternative misfeasance in public office and/or in the alternative, in breach of the deceased’s right to life pursuant to article 2 of the ECHR as incorporated by the Human Rights Act 1998.” So all the claimants - not just the deceased’s estate under the 1934 Act- claimed on the basis that the deceased had died as a result of battery. In each case, too, there was a claim for “damages in negligence, misfeasance and under the Human Rights Act arising out of the manner in which the defendant by himself and/or his officers and/or his agents treated the claimants arising out of the fatal shooting.” Finally, in each case, there was a claim for “damages in negligence, misfeasance and under the Human Rights Act arising out of the conduct of the defendant by himself and/or his officers and/or his agents in relation to and/or as part of the investigation into the death of the deceased.”

39.  It is now common ground that, since the shooting took place before 2 October 2000, no claims under the Human Rights Act 1998 can be entertained.

40.  In the Court of Appeal Sir Anthony Clarke MR explained how the other claims stood at the start of the appeal to that court [2007] 1 WLR 398, 403, paras 3 and 4:

“3. The claims were and are divided into two parts. The first part relates to the planning and execution of the armed raid and involves allegations of assault and battery (which I will together call ‘battery’), false imprisonment, negligence and misfeasance in public office. The second part relates to the conduct of the chief constable and some of his officers after the raid and involves allegations of negligence and misfeasance in public office.

4. As to the first part, the defendant admitted negligence and false imprisonment and the judge accordingly gave judgment for the claimants on those claims as appropriate, with damages to be assessed. The defendant denied battery and misfeasance in public office. The judge struck out the claim for misfeasance in public office under CPR r 3.4. She also gave summary judgment for the defendant under CPR Pt 24 in respect of both the claim for battery and the claim for misfeasance in public office.”

 
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