Law Report: Hunt saboteur's arrest lawful: Kelly v Chief Constable of Hampshire and another. Court of Appeal (Lord Justice Lloyd and Sir David Croom-Johnson). 24 March 1993.

The question whether a police officer acted lawfully in arresting a hunt saboteur on the basis of a reasonable belief that a breach of the peace was likely to occur was one for the judge alone and it was not necessary for a jury first to decide whether, at the time of the arrest, the officer was or should have been aware that the person he was arresting was in fact the victim of an assault by a huntsman.

The Court of Appeal dismissed an appeal by the plaintiff, Patrick Kelly, from Judge McLaren Webster QC, sitting with a jury at Winchester County Court on 26 February 1991, who dismissed the plaintiff's claim for damages for false imprisonment.

Nickholas Blake (Mackenzie Knight, Hounslow) for the plaintiff; Robert Beecroft (County Secretary, Hampshire County Council) for the first defendant.

LORD JUSTICE LLOYD said that on 5 March 1988, the plaintiff, a hunt saboteur, attended a meet of the Hampshire Hunt at Ropley. He was involved in an altercation with the second defendant, Mark Evans, a member of the hunt, in the course of which he was horsewhipped and headbutted by Mr Evans. Then Police Constable Cutts rode up on a motorbike and arrested the plaintiff for conduct likely to cause a breach of the peace. The plaintiff was taken to Alton police station. Two and a half hours later he was released without charge.

After a 10-day hearing, the jury found that Mr Evans had assaulted the plaintiff, who was awarded pounds 25 damages. There was no appeal on this aspect of the case.

The judge then decided that PC Cutts had reasonable cause to arrest the plaintiff and had detained him for good cause and reasonable duration in the circumstances, and dismissed his claim against the police.

The plaintiff argued that the judge ought first to have put certain issues of fact to the jury, particularly the question whether PC Cutts was aware at the time of the plaintiff's arrest that he had been assaulted by Mr Evans. But the judge ruled there were no issues of fact to be resolved by the jury before he decided whether the plaintiff's arrest and detention had been lawful. He concluded that PC Cutts had reasonable grounds to believe that a breach of the peace had occurred and that a further such breach was imminent.

The leading case on this was Dallison v Caffery (1965) 1 QB 348, where the plaintiff was arrested on suspicion of having committed a felony. Lord Diplock at p371 said: 'In arresting, detaining, or prosecuting a suspected felon, a person is acting in furtherance of the administration of justice. It is a well-settled rule of procedure that the question whether in so doing he is acting reasonably is one to be decided by the judge.'

If there was conflicting evidence as to what happened, the jury had to resolve that conflict; but it was for the judge to rule whether the defendant's conduct was reasonable or unreasonable, and it was for the judge to decide what facts were relevant to that question.

The plaintiff argued that this ruling did not apply to a case where the officer had arrested the plaintiff, not for a suspected felony in the past, but to prevent an imminent breach of the peace since the crime, if any, lay in the future. But in his Lordship's judgment Lord Diplock's reasoning was of general application.

If, on the information available to him at the time, the officer reasonably believed a breach of the peace was likely to occur, he could arrest one or more persons. It was a question for the judge whether, at that moment, the officer had reasonable cause to believe that a breach of the peace was likely to occur.

It was irrelevant who caused or started the altercation. The officer did not at that moment have to hold an inquiry or conduct an investigation. He was required to act promptly. The question as to the rights and wrongs between the various parties involved came later.

The judge was therefore right to conclude that the question whether PC Cutts was aware that Mr Evans had assaulted the plaintiff was irrelevant to the question whether PC Cutts acted reasonably in arresting him.

Finally, in the light of the plaintiff's candid admission that, if not arrested, he would have stayed with the hunt, with the possibility of further confrontation, PC Cutts was entitled to conclude that the best way to prevent a further breach of the peace was to continue the plaintiff's detention at the police station.

SIR DAVID CROOM-JOHNSON agreed.