Court dismisses false imprisonment claim where police arrested citizen for breach of peace and used reasonable force.

[*633] 1982 September 25

(PR. NICOLAIDES, AG. S.D.J. ) IN THE DISTRICT COURT OF NICOSIA

Costas Halloumis,

Plaintiff,

v.

Kyriacos Longinos and Another,

Defendants.

(Action No. 44/79).

False imprisonment - Unlawful arrest and detention - Article 11.3 of the Constitution - Right of citizen to be informed at the time of his arrest of.the reasons for his arrest - Article 11.4 of the Constitution - Arrest without a warrant - When justified -Police Constable - Duty to take steps for keeping the peace and for preventing crime - police constable arresting, without warrant, plaintiff for committing offences of assault and disturbance and after informing him of the reasons of his arrest

- Reasonable force used against plaintiff who was resisting the arrest - Open to Police Contable to arrest plaintiff - No unlawful interference with plaintiff’s liberty.

Damages - False imprisonment - principles applicable.

Chr. Christofides for Messrs.

L. papaphilippou & Co., for the Plaintiff.

G1. HadjiPetrou, for the Defendants.

JUDGMENT

The following judgment was delivered by:-

FR. NICOLAIDES.AG. S.D. J:- In the .present action [*634] the Plaintiff claims against Defendant 1 damages for an unlawful arrest and detention and damages for an assault causing him bodily injuries.

Defendant 2 issued vicariously.

In the Statement of Claim the Plaintiff alleges that on or about 17/12/78, Defendant 1, who is a police sergeant, assaulted him and forced him to get into a police vehicle. He was driven to palechori Police Station where he was attacked and injured by Defendant 1. The injuries the Plaintiff sustained, according always to the Statement of Claim, were haematoma on the lips and bruises.

In the Defence it is alleged that no physical violence was exercised by Defendant 1 or any other member of the police force and that the Plaintiff was lawfully arrested because he was misbehaving in a manner which might have resulted to a breach of the peace. It is also alleged that the Plaintiff was lawfully detained at the Palechori Police Station and he was released the same day, after he had been formally charged,

P.W.2, Elias Toulermis, testified that in the morning of 17/12/78 he went to Palechori secondary school where a meeting of the members of the co-operative society of the village was going to take place. Both the Plaintiff and Defendant 1 were present. There the Plaintiff objected to the presence of Defendant 1, but when the officials of the society confirmed that Defendant 1 was a member of the society, [*635] thus having a right to attend the meeting, things cooled down. The witness said that he heard the Defendant saying to the Plaintiff: "Now that you have grown older you have lost your senses"

- ("Τώρα που εγέρασες επέλλανες και θέλεις να σε πάρουν στην Αθαλάσσα;

Επήραν τζι’ άλλους"). Finally, the Defendant stayed and attended the meeting.

However, the argument continued the afternoon of the same day. P.W.3, Karpis Karageorgis, in giving evidence said that at about 1 p.m. he was in the square of the village, outside the coffee-shops. He saw the Plaintiff and the Defendant talking for 2-3 minutes. He heard the Plaintiff threatening the Defendant that he would report him to his superiors and then he heard the Defendant saying: "You are under arrest". He saw the Defendant holding the Plaintiff from his collar and pulling him.

The witness did not hear the Defendant stating the reasons of the arrest. The Plaintiff, according to the witness, before his arrest, made no gesture against the Defendant.

The Plaintiff was forcibly put into a police vehicle and was driven to the police station.

P.W.4-, Costas

Kassoulides, stated that on 17/12/78 and at about 3·30 p.m. he was standing with the Plaintiff outside a coffee-shop when

the Defendant approached and joined them. He spoke to the Plaintiff and uttered some conciliatory words. The Plaintiff responded unfavourably and he said: "I'll show you tomorrow". They were making[*636] gestures out not in an offensive manner, Eventually the situation worsened and the Defendant told the Plaintiff that he was under arrest. The witness said that the Plaintiff did not push or assault the Defendant before his arrest.

According to the witness there were other persons present and the argument was rather strong.

In cross-examination the witness. said that when the Defendant approached them his disposition was friendly. The witness admitted that he gave a statement to the police which was produced (Exh. 2). The witness said that if there is any discrepancy between his testimony and his statement to the police the statement was relating the true facts.

And indeed there was such a discrepancy. In his statement he gave a completely different picture He said that the Plaintiff was shouting and many persons gathered around him to see what was happening. The witness tried to cool him down but the Plaintiff continued to shout and he was misbehaving. Eventually the Defendant approached to see what was happening and tried also to cool down the Plaintiff. The Plaintiff in an offensive way continued to shout, this time at the Defendant, and at some stage he raised his hand's and pushed him. After that the Defendant arrested the Plaintiff and drove him to the police station.

The Plaintiff in his evidence said that at about 3 p.m. he was talking to two of his co-villagers when the Defendant came near them. He was friendly but when the Plaintiff informed him that he intended to report him to [*637] the Attorney-General for covering up the drivers and owners of the buses of the area, he attacked him and pulling him from the lapel, he arrested him. The Plaintiff denied that he made any effort to push or to attack the Defendant. At the police station, as the allegation of the Plaintiff goes, the Defendant hit him with his hand on the mouth. when the Plaintiff asked for medical help, the Defendant gave him a punch on the chest and then escorted him to a tap where the Plaintiff washed himself. The Plaintiff was bleeding and his handkerchief was bloodstained. He remained at the police station until 6 p.m. After he was released, he visited, the community doctor who examined him. The next day he visited the Nicosia police station where he was referred to the Nicosia General Hospital for examination.

The doctor who examined him there also gave evidence and produced the medical report she issued (Exh. 3) According to the report she found a minimal abrasion on the inner mucosa of the upper lips. She explained that an injury like that may be caused by knocking himself against a protrusion or by a punch.

In cross-examination she said that the injury might be caused if the Plaintiff tried to bite somebody's hand and such a person in his effort to avoid the bite, moved his hand.

The first witness for the defence was Dr. Maria Georghiou, the doctor who first examined the Plaintiff at Palechori, the same night of the incident. [*638]

She said that she was visited by the Plaintiff whom she examined. She found nothing. She did not issue a report because the Plaintiff had no injuries at all. She said further that the examination was very careful and thorough as she knew that the case would end up in a Court of Law. She was very definite in stating that if the Plaintiff had the injuries described in Exh. 3, undoubtedly she would have noticed them.

D. W.2, Panayiotis Papanicolis, stated that in the afternoon of the date of the incident, he saw about 30 persons gathered and the Plaintiff shouting. When the noise continued the witness saw the Defendant approaching and trying to cool down the Plaintiff, His efforts were unsuccessful and finally the Plaintiff pushed the Defendant. The witness heard the Defendant saying to the Plaintiff: "You are under arrest for disturbance and assault".

Defendant I gave, more or less, the same version, He said that at about 3.30 p.m. whilst he was on duty he noticed a number of gathered persons and he heard shouts. He approached and enquired what was happening. The Plaintiff started shouting at him referring to what happened at the co-operative meeting of the same morning. The. Defendant tried to cool him down unsuccessfully and during the argument the Plaintiff pushed him. Immediately after that, the Defendant arrested the Plaintiff informing him of the reasons of bis arrest. The Plaintiff was pushing and pulling resisting arrest, and bited the Defendant on the index [*639] finger of his left hand. With the help of other policemen the Plaintiff was put in a police Land/Rover and was driven to the police station. He was released later the same day, after some time.

The Defendant denied that he assaulted the Plaintiff in the police station.

D.W.3, Panayiotis Eleftheriades, said that at about 5·30 p.m. he visited the Palechori Police Station in order to return a whistle lent to him. There he saw the Plaintiff and the Defendant sitting together in the office of the Defendant chatting in a friendly way. The Plaintiff seemed to the witness in very good spirits. He stayed with them for about 5 minutes and then he left.

I examined the evidence before me with the utmost care. Having examined the evidence as a whole and bearing in mind the demeanour of the witnesses whilst in the witness box, I find, on the preponderance of evidence, that the true facts of the case are as follows:

The Plaintiff with a number of persons around him was speaking in a rather loud tone. The Defendant approached to investigate what was happening and tried to cool down the Plaintiff. The Plaintiff did not comply With the advice of the Defendant and eventually pushed him. The Defendant arrested him and drove him to the police station.

I reject the version put forward by

the Plaintiff and his witnesses as not true, exaggerated and unnatural. [*640] I would like to stress especially the fundamental

difference between the evidence of.P.W.4, Costas Kassoulides, and the statement he gave to the police.

I accept that in fact the Defendant tried in a very friendly and reconcilable manner to cool down the Plaintiff. Even the witnesses for the Plaintiff admitted that at the beginning of the incident the Defendant was very friendly. The Plaintiff's witnesses came to Court with the sole purpose of helping him, and tried to show that the Plaintiff was not misbehaving in any way and that the Defendant not only arrested him without a reason but also that he failed to inform him of the reasons for his arrest.

As regards the injuries the Plaintiff complains of, it must be noted that although Dr. Peta found minimal abrasions of the upper lips, Dr. Georghiou, the doctor who examined the Plaintiff the day of the incident, found nothing.

Furthermore, it is also very peculiar, to say the least, the fact that although the Plaintiff's handkerchief was stained with blood - as he alleged - he failed to show it to the Nicosia Police Station when he went there in order to complain. The Plaintiff also failed to tell to P.W.4, whom he met after his release, that he was assaulted, though he mentioned that he was going to sue them, presumably meaning the Defendant.

Anyhow the injury could have resulted during the effort of the Plaintiff to resist the arrest. [*641]

The next question which pose's for an answer is whether the Defendant lawfully arrested the Plaintiff or not or whether his arrest was unlawful, thus constituting a false imprisonment.

False imprisonment is the unlawful and total restraint of the personal libery of another, whether by constraining him or compelling him to go to a particular place or by confining him to a prison or police station or private place, or by detaining him against his will in a public place.

The essential element is the unlawful detention of the person or the unlawful restraint on his liberty (Archbold Criminal Pleading, Evidence & Practice, 40th Edn., para. 2795).

A false imprisonment is the complete deprivation of liberty for any time, however short, without lawful cause. An unlawful arrest is a false imprisonment, and if the requirements of the law are not complied with, an arrest will be unlawful and ground an action in false imprisonment.

The Law gives most protection against the deprivation of personal liberty. Any total restraint of liberty is an imprisonment and the person imposing it must prove that the restraint was justified by the Law.

Not only is false imprisonment a tort but it is also an offence. The remedy in a civil action is damages.

Although it is in the public interest that of- [*642] fenders should be caught and punished, the right of freedom is in modern societies zealously protected.

In our country the Constitution entrenches the right of citizens against arbitrary detention and lays down that no person shall be arrested save as provided by the Constitution.

Article 11.3 of the Constitution provides:

"Save when and as provided by law in case of a flagrant offence punishable with detention or imprisonment, no person shall be arrested save under the authority of a reasoned judicial warrant issued according to the formalities prescribed by the law".

In Kyriakides v. The Republic.

1 R.S.C.C. 66, the term "flagrant" was construed as follows:

"Flagrant means that the commission of the offence and the arrest should follow each other directly in point of time and sequence".

Furthermore, Section 14(1)(b) of the Criminal Procedure Law, Cap. 155, provides that any police officer may, without warrant, arrest any person who commits in his presence any offence punishable with imprisonment.

A valid arrest consists of at least two ingredients: first, the physical trespass to the person and, secondly, the stated reason for the arrest. Both are necessary ingredients. As regards the stated reason for the arrest it may be that no [*643] particular form of wording is required so long as the person arrested knows on suspicion of what offence he is being held under arrest. (R. v. Weir, (1970) 3 All E.R. 906).

In Christie v. Leachinsky,

(1974) App. Cas. 573, the following propositions Were established by Viscount Simon at p.587:

(1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized.

(2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment,

(3) 'The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general,nature of the alleged offence for which he is detained.

(4) The requirement that he should be so informed does not mean that technical or precise language [*644] need be used. The matter is a matter of substance, and turns on the elementary proposition that a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed.

(5) The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, e.g., by immediate counterattack or by running away.

There may well be other exceptions to the general rule in addition to those indicated and the above propositions are not intended to constitute a formal or complete code, but to indicate the general principles on a very important matter.

(See also R. v. Howarth., (1828) 1 Mood. 207; R. v. Ford, (1817) Russ. & Ry 329).

In Cyprus the right of the citizen to be informed at the time of his arrest the reasons for his arrest is safeguarded by Article 11.4 of the Constitution which reads:

"Every person arrested shall be informed at the time of his arrest in a language in which [645] he understands of the reasons for his arrest and shall be allowed to have the services of a lawyer of his choosing".

The duty to inform the person arrested of the reasons for his arrest is not absolute and is discharged if the person making the arrest takes reasonable steps, open to him, to bring to the notice of the arrestee the reasons for his arrest. A police constable is absolved of his duty to inform the arrestee for the reasons of his arrest, where the latter had made communication to him impossible by his violent behaviour - (Gordon, 53 Cr.App.R. 614).

The omission to tell -a person who is arrested at, or within a reasonable time -of the arrest, with what offence he is charged, cannot be regarded as a mere irregularity. Arrest and imprisonment, without a warrant, on a charge which does not justify arrest, are unlawful and therefore, constitute false imprisonment. (Per Lord Du Parcq in Christie v. Leachingsky (supra), at p.600).

In Pedro v. Diss, (1981) 2 All E.R. 59, at p.64, Lord Lane C.J., also stressed that compliance with the requirements of a lawful arrest is not a mere formality, and a person who is not being lav/fully arrested may rely on the justification of self-defence, if he assaults the police officer in order to resist arrest.

And he added:

"It is a matter of importance, therefore, to a person at the moment when he is first physically [*646] detained by a police offficer, to know whether that physical detention is or is not regarded by that officer as a formal arrest or detention. That is one of the reasons why it is a matter of importance that the arresting or detaining officer should make known to the person in question the fact that, and the grounds on which, he is being arrested or detained".

The existence of the situation which justifies or demands arrest without a warrant cannot justify or demand either a refusal to state the reason of arrest or a misstatement of the reason.

All this is for the obvious purpose of securing that a citizen who is prima facie entitled to personal freedom should know why for the time being ills personal freedom is interfered with. (See also per Lord Parker, C.J., in R. v. Kulynycz. (1970) 3 All E.R. 881, at 883).

In Christie v. Leachlnsky (supra), at p.591, Lord Justice Simonds, had this, to say:

"Putting first things first, I would say that it is the right of every citizen to be free from arrest unless there is in some other citizen, whether a constable or not, the right to arrest him. And I would say next that it is the corollary of the right of every citizen to be thus free from arrest that he should be entitled to resist arrest unless that arrest is lawful. [*647]

How can these rights be reconciled with the proposition that he may be arrested without knowing why he is arrested".

……………………………………………………..

"I would, therefore, submit the general proposition that it is a condition of lawful arrest that the man arrested should be entitled to know why he is arrested. ..."·

And at p.598 Lord Justice Du Parcq added:

"The principles established by the authorities are agreeable to common sense, and follow from the governing rule of the common law that a man is entitled to his liberty, and may, if necessary, defend his own freedom by force. If another person has a lawful reason for seeking to deprive him of that liberty, that person must as a general rule tell him what the reason is, for, unless he is told, he cannot be expected to submit to arrest, or blamed for resistance".

But the right to resist is always limited by the duty to submit to arrest by an officer of the law even though the reason for arrest is not at once stated.

The Courts in Cyprus also recognised the right of the citizen to resist when the police overstep the limits of their powers and arrest a person in circumstances where they have no lawful authority to do so, In Modestos Pitsillos v. The Police, (1966) 2 C.L.R. 50, at p.55, it is stated: [*648]

"It should not be supposed that, in raising these matters, we have any desire to encourage citizens to resist· lawful authority. It is the duty of the Courts, however, to see that a true balance is kept between personal freedom on the one hand and social security on the other. Social security requires that the police should have power to make a lawful arrest, but individual freedom requires that a man should-have power to resist an unlawful arrest. If the police should overstep the mark and arrest a man when they have no lawful’ authority to·.do so, he is entitled to resist the unlawful arrest".

For the incident in question, the Plaintiff was arrested and prosecuted for two offencess Assault causing bodily harm and disturbance.

Section 243 of the Criminal Code, Cap. 154, provides that any person who commits an assault occasioning actual bodily harm is liable to imprisonment for three years.

Section 95 of Cap. 154 provides that any. person who creates a noise or uproar in a public place without reasonable cause in a manner likely to disturb the inhabitants or to cause a breach of the peace, is liable to imprisonment for three months.

At this stage, the question which

poses for an answer may be stated, I think, as follows: In the circumstances [*649] of the case, was it open to Defendant 1 to arrest the Plaintiff

without a warrant and can he justify that arrest by proof that the Plaintiff committed the said offences?

It is easily noticeable that both offences for which the Plaintiff was arrested are punishable by imprionment.

As a general rule a police officer reasonably believing that a breach of the peace is about to take place, is entitled to take such steps, including the reasonable use of force, to prevent it in circumstances which appear to him to be proper. (See Archbold (supra), para, 2719).

The definition of "police powers” was given by Lord Parker in Rice v. Connolly. (1966) 2 Q.B. 414, at 419;

"It is also in my judgment clear that it is part of the obligations and duties of a police constable to ‘take all steps which appear to him necessary for keeping the peace and preventing crime, or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further include the duty to detect crime and bring an offender to justice",

(Adopted in Castelow and Another v. The Police. (1970) 2 C.L.R. 141). [*650]

In the case of Duncan v. Jones,

(1963) L.J.R. (Kings Bench Division) Vol. 105, P.71, it was held that, as it was the duty of a peace officer to prevent a reasonably apprehended breach of the peace, and accordingly to prevent the holding of a meeting, which was reasonably apprehended to result in such breach of the peace and he was obstructed by the appellant to do so, such obstruction was committed whilst the peace officer was in the execution of his duty.

In Castelow and Another v. The Police (supra) at p.146, Vassiliades P., said:

"When people take it upon themselves to act in that manner, they must be prepared to expect that their violence will be met by the necessary force to keep them quiet; and to take them to the nearest police station. All parties who either choose or happen to get involved in such sort of conduct, must also bear in mind that their behaviour may eventually have to be discussed in a criminal trial; and to be considered in the calm atmosphere of a Court".

And at p.147:

"Needless to say that the power to make a lawful arrest should be exercised by a police constable sparingly and where this is really [*651] necessary. Moreover, it must be stressed that in arresting a person, a-·constable should do no more than is reasonably necessary for that purpose; and that, if he is compelled to make use of force, the injury that he may cause to a person who resists arrest, should not be disproportionate to the injury which the constable is trying to avoid".

However, more noise and interruption at a public meeting do not in themselves constitute a breach of the peace (see Wooding v. Oxley, (1839) 9 Q· &P, 1), but they do otherwise if the disturbance amounts to obstruction of a public officer in the execution of his duty (see Spilsbury v. Micklethwaite,

(1808) 1 Taunt l46).

Except for the charge of disturbance, the Plaintiff was also prosecuted for an assault on Defendant 1,

According to our law an assault causing actual bodily harm is punishable with imprisonment.

If the peace officer, when the assault is committed on him is not in the execution of his duty, then, and if the assault

is proved, the accused may be found guilty of the offence of common assault although such a count has not been added on the charge-sheet.

Lord Goddard C.J, In George Wilson,

(1955) 39 Crim. App.R, 12, at p.16, had this to say: [*652]

"An. assault with, intent to resist arrest is simply one form of aggravated assault, that is to say, it is an assault with circumstances of aggravation which allow a heavier sentence to be passed than in the case of a simple assault. But of course it involves an assault".

An action of false imprisonment is in fact an action of trespass to the person, and once the trespass is admitted or proved, it is for the defendant to justify the trespass if he can. (See Dumbell v. Roberts. (1944) 1 All E. R. 331; Blundell v. Att.-Gen., (1968) N.Z.L.R. 341).

At common law a person who acts honestly and reasonably in taking steps for the arrest and punishment of felons commits no actionable wrong. The rule that a person who arrests, detains or prosecutes a suspected felon commits no actionable wrong if he acts honestly and reasonably, applies alike to private persons and to police officers, but what is reasonable conduct in the circumstances may differ according to whether the arrestor is a private person or a police officer. A police officer can arrest a person if he reasonably believes that a felony has been committed, whereas a private person can only arrest if a felony has in fact been committed.

As Diplock, L.J., put it in Dallison v. Caffery, (1965) 1 Q.B. 348, at 370, 371:

"Where a felony has been committed, a person, whether or not he is a police officer, acts [*653] reasonably in making an arrest without a. warrant if the facts which he himself knows or of which he has been credibly informed at the time of the arrest make it probable that the perso arrested committed the felony. This is what constitutes in law reasonable and probable cause for the arrest. Since arrest

involves trespass to the person and any trespass to the person is prima facie tortious, the onus lies on the arrestor to justify

the trespass by establishing reasonable and probable cause for the arrest. The trespass by the arrestor continues so long as he retains custody of the arrested person, and he must justify the continuance of his custody by showing that it was reasonable. What is reasonable conduct on the part of a police officer in this respect may not be the same as what would be reasonable conduct on the part of a private arrestor. This is. explicit in the early authorities cited by Lord Porter in Lewis (John) & Co. Ltd. v. Tims and implicit in the actual decision in that case, which was concerned with the duty of a private arrestor to deliver up custody of his prisoner to a police officer. If Lord du Parcq's dictum in Christie v. Leachinsky was intended to state otherwise, I do not think that it was correct". [*654]

……………………………………………………………………..

One word about the requirement that the arrestor or prosecutor should act honestly as well as reasonably· In this context it means no more than that he himself at the time believed that there was reasonable and probable cause in the sense that I have denned it above, for the arrest or for the prosecution, as the case may be, The test whether there was reasonable and probable cause for the arrest or prosecution is an objective one, namely, whether a reasonable man, assumed to know the law and possessed of the information which in fact was possessed by the defendant, would believe that there was reasonable and probable cause. Where that test is satisfied, the onus lies on the person who has been arrested, or prosecuted to establish that his arrestor or prosecutor did not in fact believe what ex hypothesi he would have believed had he been reasonable (see Herniman v. Smith, per Lord Atkin), In the nature of things this issue can seldom seriously arise".

It is not every trivial interference with a citizen's liberty that will amount to a course of conduct sufficient to take the officer out of the execution of his duties (Donnelly v. Jackman,

(1970) 1 All E.R. 987 (D.C.); see also Archbold, 40th edition, para, 2719).

It is part of the duties of a police

constable to take all steps which appear to him necessary for keeping the [*655] peace and for preventing crime. In older to

determine whether a police constable has exceeded the limits of his powers, the first question to be asked is whether the facts disclose, prima facie, an unlawful interference with the person’s liberty. If the answer is in the affirmative two further questions must be resolved before it is decided whether a police constable has exceeded his powers: (a) Was the conduct of the police constable permitted by statute or recognized at Common Law? and (b) does such conduct, even though it is permitted by statute involve an unjustifiable use of powers associated with a duty? (Donnelly v. Jackman (supra)).

A police constable acting in the execution of his duties is entitled to the full protection of the Law. If, however, he deviates from the course of his duties and abuses his powers he loses the protection of the. Law. Any violation of human rights by members of the police force is not only illegal but completely unacceptable.

In Psaras v. The Police,

(1968) 2 C.L.R. 8, Vassiliades P. stressed at p. 12:

"In the present day in civilized world, the Courts have the duty and responsibility to sustain and enforce the internationally accepted human rights, whenever these are involved or violated in a case before them".

In Christie v. Leachinsky (supra) at p.602, Lord de Parcq had this to say: [*656]

"I have already reminded your Lordships of the reluctance of the Courts to accord to the officer of the law any rights or privileges which are denied to private citizens. ‘With some few exceptions’, Sir James Fitzjames Stephen wrote in a passage which was cited by Scott L.J. 'he may be described as a private person paid to perform as a matter of duty acts which, if so minded, he might have dene voluntarily’. (History of the Criminal Law, vol. 1, p.494) The learned author said further that when the police constable had made an arrest he was under precisely the same obligations as a private person, and I believe this to be a correct statement of the common law".

Although a wide measure of discretion must be left to those whose duty is to preserve the peace and bring criminals to justice, if a policeman acts outside his powers he is personally liable and the Chief of Police is vicariously liable provided the policeman was acting in the performance or purported performance of his functions (see Celia Hampton’s Criminal Procedure and Evidence, p.41).

This being the law, I now return to the present case.

From the evidence it is clear that the Defendant took all reasonable steps to prevent a breach of the peace.

At the beginning he tried to advise the Plaintiff to stop [*657] misbehaving and later on when his efforts proved unsuccessful he arrested him using reasonable force against the Plaintiff who was resisting the arrest.

The offences for which the Plaintiff was arrested, namely disturbance and assault, are both punishable by imprisonmentand the arrest followed directly in time and sequence the commission of the offences. Therefore, it is obvious that it was open to the Defendant to arrest the Plaintiff and I am satisfied that he was justified in believing that the Plaintiff committed the offences in question. Furthermore, I find that the Defendant informed the Plaintiff of the reasons of his arrest, although, as the evidence goes, even if the Defendant had failed to inform him accordingly, he would have been absolved of such duty as the Plaintiff made it impossible by his violent behaviour.

After all, the Plaintiff was resisting and was trying to bite the Defendant's finger, an effort which at the end proved successful.

In view of. the above I find that the question whether the facts disclose, prima facie, an unlawful interference with the Plaintiff's liberty, is answered in the negative. But furthermore, it is clear that the conduct of the Defendant who is a police-officer is permitted by the law. The Plaintiff committed flagrant offences punishable by imprisonment. The conduct of the Defendant cannot be considered as an unjustifiable use of powers associated with his duties. [*658]

The above must not, however, be misinterpreted as meaning that the members of the police force are enti tied to violate the human rights of the citizens. Such a proposition would be totally unacceptable. Much blood was shed and people underwent a great amount of suffering in order to secure the protection and respect of the rights of citizens. The state and its organs including the police force have the duty to respect and obey the Law.

I take this opportunity to repeat once again the strict warning that the courts of this country will stand as the protectors of the law and any misuse or abuse of power will not be tolerated. Any deviation from the course of duty and particularly any violation of human rights by members of the police force is completely unacceptable. On the other hand, however, it is not every trivial interference with a citizen's liberty that amounts to a course of conduct sufficient to take a policeman out of the execution of his duties. The balance between the protection of the human rights and the prevention of crime and the protection of society must be maintained.

For all the above reasons, the Plaintiff's claim fails and the action must be dismissed.

Before concluding, however, I will estimate the damages which the Plaintiff would have been entitled to if he were successful.

In false imprisonment it is not a

pecuniary loss that the plaintiff usually sustains but a loss of dignity [*659] and the like and, therefore, much is left to the

judge's discretion. The principal heads of damage would appear , to be the injury to liberty, i.e., the loss of time considered primarily from a non-pecuniary viewpoint, and the injury to feelings, i.e., the indignity, mental suffering, disgrace and humiliation with any attendant loss of social status. (See McGregor on Damages, 13th Edn., para. 1263). Further, any pecuniary loss which is not too remote is recoverable. Pecuniary losses fall into two categories. First, any loss of general business or employment is recoverable. (See Childs v. Lewis. (1924.) 40 T.L.R. 870). Secondly, the Plaintiff's costs incurred in procuring his discharge from the imprisonment may be recoverable as damages (See Pritchet v. Boevey. (1833) 1 Cr. & M. 775).

The primary object of an award of damages is to compensate the Plaintiff for the harm done to him; a possible secondary object is to punish the Defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding exemplary damages,

In Rookes v. Barnard, (1964.) 1 All E.R. 367, it was held that there remain three categories of cases in which awards of exemplary damages are legitimate:

(a) When exemplary damages are expressly authorised by statute,

(b) when there has been oppressive, arbitrary or unconstitutional action by the servants of the government (including the police and local and other officials), and [*660]

(c) when the defendant' s conduct has been calculated by him to make a profit for himself which may exceed the compensation payable to the plaintiff.

The Rookes v. Barnard case raised much discussion and recently Commonwealth opinion has begun to harden against the decision. In Broome v. Cassell & Co. Ltd. and Another,

(1971) 2 All E.R. 187, it was stated that the difficulties presented by Rookes v. Barnard are so great that until the House of Lords has considered the problem again judges should direct juries in accordance with the law as it was understood before Rookes v. Barnard. (See also Attorney- General of Saint Christopher, Nevis and Anguilla v, Reynolds. (1979) 3 All E.R. 129).

In Savvas Faraskevas v. Despina Mouzoura, (1973) I C.L.R. 88, the Rookes v. Barnard was not followed.

On the issue of exemplary damages useful reference can be made to Gregoriades v. Kyriakides (1970) 1 C. L.R. 12 but I feel that a more thorough exposition of the law as regards exemplary damages should wait for a more fortunate moment.

Concluding and taking into consideration the circumstances of the whole case (if, of course, the Plaintiff was successful in proving the tort of false imprisonment), I feel that the sum of £300,- would be a fair and reasonable compensation. [*661]

The Plaintiff did not suffer any actual damage as he was released the same day and the humiliation he sustained was rather theoretical. His injuries were completely superficial and no actual damage was done. Anyhow no evidence was adduced as regards the Plaintiff's damages.

Before concluding, I would like to comment, most favourably on the fair and able way both Counsel presented the case of the litigants and the help and assistance they provided to the Court,

Action dismissed with costs against the. Plaintiff to be assessed by the Registrar on the appropriate scale.

Action dismissed with costs

against plaintiff.