It is rare that a court case excites both the tabloid and legal presses to the same extent, however that is exactly what happened when Mr Michael Parker (better known by his stage name Michael Barrymore) sued Essex Police following his arrest in relation to the death of Mr Stuart Lubbock. The facts were these. Mr Barrymore had been for a night out in Harlow. In the early hours of 31 March 2001, Mr Barrymore and eight other people (including Mr Lubbock) returned to Mr Barrymore’s home in Roydon. At 5.45 am, Mr Lubbock (previously an intoxicated but otherwise healthy individual) was found in Mr Barrymore’s swimming pool unconscious and not breathing and he was later pronounced dead. A post mortem examination carried out later that day revealed that Mr Lubbock had suffered severe anal injuries. Two of Mr Barrymore’s guests were arrested on suspicion of Mr Lubbock’s murder, but were not charged. Mr Barrymore himself was arrested for drug offences, for which he received a caution. On 14 June 2007 (some six years after Mr Lubbock’s death), Mr Barrymore was arrested by Essex Police on suspicion of raping and murdering Mr Lubbock. He was held overnight before being released on bail the next day. On 10 September 2007 the Crown Prosecution Service decided that there was not sufficient evidence to charge anyone with offences relating to Mr Lubbock’s injuries or death. Mr Barrymore sued Essex Police, alleging that the 2007 arrest was unlawful, and that as a result he had suffered significant damages. Whilst Essex Police admitted that the arrest had been unlawful, they contended that Mr Barrymore was only entitled to receive nominal damages on the basis that he could, and would have been, lawfully arrested but for the delay in attendance of the only officer who had the necessary information to arrest, DC Jenkins. In order to carry out a lawful arrest a police officer must suspect involvement, or attempted involvement, in the commission of a criminal offence and have reasonable grounds for believing that the person’s arrest is necessary. If an arrest is unlawful, it follows that any detention will be unlawful unless, and until, such arrest is corrected. DC Jenkins had reasonable grounds for such suspicion, however she was caught in traffic. Therefore, DC Cootes carried out the arrest. Essex Police based their defence on the Supreme Court decision in Lumba v SSHD. In this case it was held that damages for false imprisonment are calculated to “put the claimant in the position he would have been in had the tort not been committed. Thus if the position is that, had the tort not been committed, the claimant would in fact have been in exactly the same position, he will not normally be entitled to anything more than nominal damage” (tort meaning a wrongful act or infringement of a right). Essex Police submitted that, had DC Cootes realised he did not have reasonable grounds he would have called his superiors to obtain such information, or would have waited for DC Jenkins to arrive. On this basis they suggested that Mr Barrymore was entitled to no more than £1. The Court disagreed. They found that the relevant question was not ‘What would have happened if DC Cootes had had an epiphany about the illegality of his actions?’, but simply ‘What would have happened if DC Cootes hadn’t arrested Mr Barrymore?’. The Court held that if DC Cootes hadn’t unlawfully arrested Mr Barrymore, one of the many other officers present would have, and would have done so unlawfully. The sum to be awarded is yet to be decided, however it is reported that Mr Barrymore values his claim at more than £2.4 million. This decision distinctly limits the application of Lumba, and could see substantial damages being awarded in more unlawful arrest and detention cases. Where no officer present at the arrest has sufficient information to have ‘reasonable grounds’ for their suspicion, the claimant in an action for unlawful arrest and detention has grounds to argue their entitlement to substantial damages. This action is now likely to be very attractive for those who believe they have been unlawfully arrested. If you have any questions on anything covered in this article, please do get in touch with our Criminal Defence Team on 01603 610911.
