Law report: Juries to be given guidance on awards against police

LAW REPORT: 28 February 1997

Thompson and another v Commissioner of Police of the Metropolis; Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Auld, Sir Brian Neill) 19 February 1997

Juries when assessing damages awarded to members of the public for unlawful conduct towards them by the police should in future be given guidance by the judge with a view to establishing some relationship between such awards and those obtained for personal injuries.

The Court of Appeal dismissed an appeal by the Metropolitan Police Commissioner against an award of pounds 51,500 damages made by Judge Quentin Edwards QC and a jury at Central London County Court on 12 June 1995 to Claudette Thompson for false imprisonment, assault and malicious prosecution. But the court allowed the Commissioner's appeal against another award, of pounds 220,000 damages made by Judge Edwards and a jury at the same court on 28 March 1996 to Kenneth Hsu for wrongful arrest, false imprisonment and assault, to the extent of reducing the award to pounds 35,000.

David Pannick QC with Fiona Barton in the first case and with Nicholas Ainley in the second (Metropolitan Police Solicitor) for the Commissioner; Ben Emmerson (B.M. Birnberg & Co) for Miss Thompson and, led by Edward Fitzgerald QC (Christian Fisher & Co) for Mr Hsu.

Lord Woolf MR said that in such cases the jury should be told the only remedy they had power to grant a successful plaintiff was damages. Save in exceptional circumstances, damages were to compensate the plaintiff, not to punish the defendant.

At present, compensatory damages were either (a) ordinary or basic damages, or (b) aggravated damages, which should only be awarded where there were aggravating features about the defendant's conduct. (Special damages, in respect of some specific pecuniary loss, should be explained separately.)

Basic damages would depend on the circumstances and degree of harm to the plaintiff. Juries should be given an appropriate bracket as a starting point, to be determined by the judge after hearing submissions from counsel in the jury's absence.

For wrongful arrest and false imprisonment, the starting point would be about pounds 500 for the first hour of loss of liberty, with additional amounts thereafter but on a reducing scale, so as to keep damages proportionate with those paid in personal injuries cases and because the plaintiff was entitled to a higher rate for the initial shock of arrest. For wrongful custody of 24 hours about pounds 3,000 would be appropriate.

For malicious prosecution the figure should start at about pounds 2,000 and for prosecution continuing for as long as two years, the case being taken to the Crown Court, an award of pounds 10,000 would be appropriate. Where malicious prosecution resulted in a conviction which was only set aside on appeal, a larger award was justified.

Aggravated damages should be awarded where there were aggravating features about the case which would result in a basic award not sufficiently compensating the plaintiff. Such features included humiliating circumstances at the time of arrest or high-handed, insulting, malicious or oppressive conduct by those responsible for the plaintiff's arrest, imprisonment or prosecution.

Contrary to present practice, when making an award of other than basic damages, the jury should made a separate award for each category of damages.

Aggravated damages, where appropriate, were unlikely to be less than pounds 1,000, but would ordinarily not be as much as twice the basic damages unless the basic award was modest. It should be strongly emphasised to the jury that the total figure for basic and aggravated damages should not exceed what they considered fair compensation.

Where there was evidence to support a claim for exemplary damages, the jury should be told that although it was not normally possible to award damages to punish the defendant, it was possible in exceptional cases where there had been conduct, including oppressive or arbitrary behaviour, by police officers which deserved the exceptional remedy. Such damages were unlikely to be less than pounds 5,000, and might be as much as pounds 25,000, with an absolute maximum of pounds 50,000 for cases directly involving misconduct by officers of at least the rank of superintendent.

Any improper conduct of which the jury found the plaintiff guilty could reduce or even eliminate any award of aggravated or exemplary damages if it contributed towards the police conduct complained of.