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[Unlawful Dismissal] Jupiter General Insurance Co Ltd v Shroff

The manager of the life insurance department of an insurance company recommended the issue of an endowment policy upon a life which the managing governor had a few days earlier refused to re-insure. He was thereupon dismissed, being given his current month’s salary and a month’s salary in lieu of notice:—

Held – (i) upon the facts the manager was entitled to more than one month’s notice, and the dismissal must be treated as a summary dismissal.

(ii) the one act of misconduct of the manager justified a summary dismissal.

Per Cur. The immediate dismissal of an employee is a strong measure, and it can be only in exceptional circumstances that an employer is acting properly in summarily dismissing an employee on his committing a single act of negligence.

Cases referred to

Baster v London & County Printing Works [1899] 1 QB 901; 34 Digest 79, 563, 68 LJQB 622, 80 LT 757.

Bombay Cotton Manufacturing Co Ltd v Motilal Shivlal (1915) LR 42Ind App 110.

Clouston & Co Ltd v Corry [1906] AC 122; 34 Digest 74, 509, 75 LJPC 20, 93 LT 706.

Edwards v Levy (1860) 2 F & F 94; 34 Digest 78, 553.

Appeal

Appeal from a judgment of the High Court of Judicature at Bombay in its appellate jurisdiction (Sir John Beaumont CJ, Rangnekar J), dated 19 March 1935, allowing (in part) the respondent’s appeal from the decree of that court in its ordinary original civil jurisdiction (Davar J), dated 23 August 1934, and awarding him the sum of Rs 17,000 as damages for wrongful dismissal from the service of the appellant company. The facts of the case are set out in the judgment of their Lordships, delivered by Lord Maugham.

R P Croom-Johnson KC and C P Harvey for the appellant company, referred to Baster v London County Printing Works, Bombay

[1937] 3 All ER 67 at 68

Cotton Manufacturing Co Ltd v Motilal Shivlal, Clouston & Co Ltd v Corry.

A M Dunne KC, Sir Thomas J Strangman KC and S P Khambatta for the respondent, referred to Edwards v Levy.

R P Croom-Johnson KC and C P Harvey for the appellant company.

A M Dunne KC, Sir Thomas J Strangman KC and S P Khambatta for the respondent.

15 April 1937. The following judgments were delivered.

Various questions were argued in the courts below, but the only question with which their Lordships find it necessary to deal is whether, assuming that, upon the true construction of the contract of service between the parties, the respondent’s employment was not terminable on one month’s notice, the appellant company was entitled summarily to dismiss the respondent from its service. In the view their Lordships take of the appeal, it is unnecessary to express an opinion upon the true construction of the contract of service, or on the question as to the proper measure of damages, if any were recoverable.

The appellant company carries on a large insurance business in Bombay. A firm called Lalji Naranji & Co were the managing agents, and Mr Lalji Naranji is, or was, the chairman of the board of directors of the appellant company. A Mr Mody was the managing governor, and was authorised to do all the business of the company, subject to the control of the managing agents. The respondent was at first in the service of the appellant company from 1 June 1925 until 1 June 1926, as a canvasser. In May 1928, the appellant company opened a life insurance department, and in that month the respondent re-entered its service as manager of that department. His salary began at Rs 200 a month. On 24 January 1930, after some other increases, it was raised to Rs 400 a month, as from 1 January, and, by a letter of 24 January, it was agreed that, in the event of the life department showing certain annual increases in the business, his salary would be gradually increased up to a maximum of Rs 700 a month. The letter concluded by saying: “In the event of your not being able to fulfil the guarantee mentioned above we have the right to terminate your engagement at any time thereafter by one month’s prior notice of our intention to do so.” The letter contained no other statement as to the notice to which the respondent was to be entitled if he was dismissed. It was contended on behalf of the respondent that, upon the true construction of the letter, he was entitled to continue in his employment for at least 31/2 years (afterwards extended to 41/2 years) subject only to the right to terminate under the concluding paragraph of the letter, in the event of the so-called guarantee as to increase of business not being fulfilled. Their Lordships do not think it necessary to express any opinion on this part of the case. The respondent was in fact dismissed from his employment on 21 December 1931, by a letter stating that his services were no longer required, and that the cashier had been instructed to pay him his salary for the current month, and also one month’s salary in lieu of notice. The letter was signed by Mr Mody as managing governor of the company, and both he and the secretary of the company deposed to the fact that the letter was written in that form

[1937] 3 All ER 67 at 69

out of consideration for the respondent, and in order that he should not find it difficult to obtain service elsewhere. Their Lordships were not persuaded that one month’s notice was sufficient unless the clause at the end of the letter of 24 January 1930, could be relied on, a question which depends on facts on which there have been findings in favour of the respondent. Their Lordships, therefore, must approach the matter as if the case was one of summary dismissal without notice, though clearly the position of the appellant company is not worse than it would have been if no salary in lieu of notice had been paid. The respondent, at the trial, and before their Lordships, has placed much reliance on a circular bearing date 31 October 1929, and circulated among the superior officials of the company. It was prepared by Mr Mody, who was therein described as the “managing governor,” for the guidance of the office establishment, and it stated that it had been found that no responsibility was fixed on any of the officers for any work, and it had therefore been decided to divide the work in the manner mentioned. To the managing governor was allocated the business of fire, marine and accident (foreign and up-country). To the secretary was allocated the business of fire, marine and accident (local business). There followed the words: “the life department, both local and up-country, will be looked after by the secretary entirely.” The circular stated that the company had two officers, namely, the managing governor and the secretary, and that the work of both these officers was supervised by the managing agents, and there was a number of other references to the duties of the managing governor. The respondent was not mentioned in the circular, nor was his position therein defined. The respondent has contended that the managing governor had no concern with the life insurance department, and that he was entitled to resent any action by the managing governor in supervising that department as being officious and intermeddling. The trial judge, however, refused to accept this view. The respondent was driven to admit, in the course of cross-examination, that the secretary, a Mr Iyer, had to be in constant consultation with Mr Mody about the details of the proposals for life insurance. Further, a number of documents was produced in court which showed Mr Mody’s habitual supervision of the life insurance business. Not only were the respondent’s statements with reference to this matter thus proved to be ill-founded, but, according to the judge, he was driven to invent falsehoods in order to get over the effect of the documents. Moreover, in addition to the evidence given by Mr Mody and Mr Iyer, which, according to the judge, stood unchallenged, there was evidence given by a Mr Shangji Narsingh Nagarmutt, the managing agent of several Indian insurance companies, who had been in constant touch with Mr Mody, and that evidence satisfied the judge beyond a doubt that the respondent’s story that Mr Mody was a figure-head in the office, so far as the life department was concerned, was a tissue of falsehood. Their Lordships have thought it right to mention these facts because so much reliance has been placed

[1937] 3 All ER 67 at 70

on the circular and its effect, both by the respondent and by the judges in the appellate court, but, for reasons which will appear later, they attribute a minor importance only to this matter.

The material circumstances are as follows. On 10 December 1931, the appellant company received by letter from the Bombay Mutual Life Assurance Society Ltd, an advice that it had received a proposal for life insurance from one Keshavji Manekchand, and the appellant company was requested to re-insure the risk up to Rs 10,000. This letter was immediately placed before Mr Iyer, the secretary of the appellant company, and was passed on by him in the ordinary course to Mr Mody, who occupied the same room in the office as Mr Iyer. It so happened that Mr Mody was well acquainted with the life proposed to be insured, he having been a neighbour of his for 10 years. Taking the view that Keshavji’s life was not a good one, and that the re-insurance was not in the interest of the appellant company, he wrote the word “declined” on the letter of 9 December, and initialled it. The letter and papers went back to the respondent as the branch manager of the life department. On 11 December or 12 December, the respondent (in accordance with the usual practice) had an interview with Mr Mody with reference to other life business, and he asked Mr Mody what objection there was to the acceptance of the proposal of re-insurance on the life of Keshavji. Mr Mody told him that Keshavji was his next-door neighbour and a friend, and that he knew more about him than anyone in the office did, and he did not want to entertain the proposal. The respondent started grumbling by saying that, if they refused proposals of that kind, they could not be expected to do a large business, to which Mr Mody replied that he did not want his company to get into trouble by accepting such risks, and that he would not change his decision. Accordingly, on 15 December, a letter was written to the Bombay Mutual Life Assurance Society declining the re-insurance proposition. It was prepared under the directions of the respondent, who initialled it, and it was signed on behalf of the appellant company by Mr Iyer.

On 19 December, there was laid before Mr Iyer a proposal for the direct life assurance of the same Keshavji for the sum of Rs 50,000. The accompanying papers included a note, initialled by the respondent, recommending the issue of a 10 years’ endowment policy. Mr Iyer, who habitually signed the appellant company’s letters on many subjects, dealing sometimes with as many as 300 in a day, had no recollection of having signed the letter of 15 December, refusing the proposal of re-insurance, and the note initialled by the respondent recommending the acceptance of the risk did not contain any reference to this refusal, nor to Mr Mody’s personal doubts as to the life proposed to be insured. On 21 December, the respondent again brought the papers to Mr Iyer, and pointed out that Mr Lalji Naranji, who was said to have been a friend of Keshavji, had written the word “accept” on the office note. The papers were left on Mr Iyer’s table, and the latter mentioned casually to Mr Mody,

[1937] 3 All ER 67 at 71

who was in the office, that the appellant company had accepted a direct insurance proposal for Rs 50,000 on the life of Keshavji. Mr Mody, who was surprised to find that Mr Iyer had not been informed of the refusal by himself of the re-insurance proposal, wrote the words “I am against this acceptance” on a slip which he attached to the papers, and he sent them back to the respondent’s department.

Mr Mody then sent for the respondent, Mr Iyer remaining in the room. Mr Mody reminded the respondent of the previous re-insurance proposal, and asked him why he had not made any reference to this fact in the note submitted to Mr Iyer on 19 December. Thereupon the respondent became very angry, and told Mr Mody that he had no business to ask him any question, and added that Mr Mody did not know how to behave himself. He then said: “I do not care for this job, and I can find such jobs anywhere.” Mr Iyer, who had kept silent, made a gesture suggesting that the respondent should be sent out of the room. Mr Mody asked the respondent to leave but he declined. Mr Mody then said, “All right, stand,” and on that the respondent left the room. Mr Mody and Mr Iyer held a short consultation, which resulted in the letter of dismissal being sent to the respondent. In considering the importance of the incident, it should be added that the proposed risk was of an exceptional character, both as to amount and as to the age of the proposer. The practice of the office was not to insure persons above the age of 50, and Keshavji was 52 at this time. Further, the practice was not to remain liable on any life in respect of a sum exceeding Rs 10,000, and it would therefore be necessary to re-insure for no less than Rs 40,000. Having regard, however, to the fact that Keshavji was insuring his life for a large sum with the Bombay Mutual Life Assurance Society, and that that society had been unsuccessfully seeking to re-insure with the company, it was obvious that a re-insurance to the amount of Rs 40,000 in respect of such a life might be very difficult to obtain on satisfactory terms.

The trial judge, as already stated, found that the respondent in his evidence had invented false incidents, imagined interviews which never took place, placed falsehoods into the mouths of people whom he did not venture to call as witnesses, and had put forward a fraudulent document. With regard to the proposals for re-insurance and for direct insurance on the life of Keshavji Manekchand, the respondent gave evidence that the proposal for direct insurance was received before the proposal for re-insurance, and that the reason why the latter proposal was refused was that Mr Iyer and the respondent, having discussed the matter together, agreed that there was no object in accepting a reinsurance proposal when the appellant company had already got a direct proposal for a larger amount. The judge, however, wholly disbelieved this story, and found that the facts were as set out above. The respondent went so far as to suggest in his evidence that the word “Decline” and the initials of Mr Mody on the re-insurance proposal dated 9 December

[1937] 3 All ER 67 at 72

1931, from the Bombay Mutual Society were not in fact written on the document at any time before the respondent’s dismissal, but were added by Mr Mody at some subsequent date, for the purpose of supporting the appellant company’s defence to the action. These suggestions also were wholly rejected by the trial judge. As regards the interview of 21 December 1931, which resulted in the respondent’s dismissal, it may be noted here as a remarkable fact that from first to last the respondent has given no intelligible explanation, apart from the false one above mentioned, of his conduct in recommending the risk (in the form of a 10 years’ endowment policy) without any reference to the fact that Mr Mody had, to his knowledge, and for a good reason, declined the re-insurance on the same life. It is not in dispute that, at the interview of 21 December, Mr Mody, with the consent of Mr Iyer, who was present throughout, began by asking for an explanation of the respondent’s conduct. It cannot be doubted that his conduct called for explanation. He, in fact, gave none. His own account of the interview at the trial, even if it could be believed, is wholly unsatisfactory. According to him, when he came into the room Mr Mody was very angry, and banged his fist on the table and asked in a loud tone why he had recommended Keshavji Manekchand’s proposal to the directors, and he said that he himself said that since the proposal had been received in the office it ought to be put before the directors, that Mr Mody thereupon said in a very loud tone, “I do not want this business to be accepted,” to which the respondent replied that it was his duty to put forward the papers, and that he was not taking any instructions from Mr Mody. The evidence of Mr Mody and Mr Iyer, which the judge accepted, was as set out above. The main point of difference between their version and the respondent’s was that they denied that Mr Mody had spoken angrily, and they spoke of the rudeness and violent manner displayed by the respondent.

Even if their Lordships could accept the view that the respondent was entitled to conduct the life insurance business without question or interference from Mr Mody, as to which they have above expressed their opinion, the respondent’s behaviour, according to his own statement, was intolerable. It is important to remember that, on the one hand, Mr Mody had, only a week before, told the respondent that Keshavji was his next-door neighbour, and that he did not approve of the risk. It could not be in any way proper to approve the risk and to forward it to the directors without a statement of these facts. Even if Mr Mody had no authority in the matter his view, founded on special knowledge, ought not to have been in effect suppressed. In the second place, Mr Iyer, who was admittedly the official in charge of the life department, and the respondent’s superior, was present, and, if the latter really doubted the authority of Mr Mody to require an explanation, what could be easier than to ask Mr Iyer if he authorised the question and desired an answer? According to his own account, the respondent refused to explain his conduct, and Mr Mody and Mr Iyer might very

[1937] 3 All ER 67 at 73

well come to the conclusion that it was not capable of any proper or satisfactory explanation. As regards the explanation which Mr Mody asked for, it should be added that he was clearly in a position which required him to make inquiries as to every matter touching discipline and the rightful conduct of business. To take a strong illustration, suppose that there was ground for thinking that an official had been bribed in relation to the acceptance of a risk, could anyone doubt that it would be the duty of the managing governor to make inquiries, and to submit the result of them to the managing agent? The notion that the circular (or any possible construction of it) furnishes an excuse for the respondent’s refusal to explain or to defend his action and omission, in relation to the risk, to both Mr Mody and Mr Iyer seems to them to be without foundation.

Their Lordships do not take the view that the outrageous conduct of the respondent at the trial, including his inventions of interviews, his false charges, and the tissues of falsehoods of which the trial judge has found him guilty, has any direct bearing, other than an evidential one on the question whether he was properly dismissed, but they must observe that, in so far as anything turns on the correctness of the view formed by Mr Mody and Mr Iyer as to whether it was reasonably possible for the company any longer to employ the respondent, his behaviour in the witness-box makes it exceedingly difficult to conclude that their view was a wrong one. If there were any doubt as to the real meaning of the respondent’s conduct at the interview, it would be removed by the letter written by his attorneys (on 13 January 1932), after his dismissal. They state their client’s view as follows:

‘On the 21st ultimo Mr. Mody tried to interfere with our client’s work and to dictate to him certain things which he had no right to do and which in our client’s opinion was a most improper thing to do. Our client naturally did not agree with Mr. Mody’s instructions. … Our client rightly resented this interference from Mr. Mody and stated to him that he was not prepared to take any instructions from him in the matter.’

Their Lordships find it impossible to understand how the managing governor of the company could properly supervise the business if a subordinate officer chose, not only to adopt this attitude, but in effect to overrule the decision of his superior, in a case in which the latter had peculiar means of knowledge as to the danger of accepting a risk. Nor did the respondent improve matters by instructing his solicitors, on 1 February 1932, to write a letter containing serious charges against Mr Mody of giving “improper instructions” to the respondent—charges which there was no attempt whatever to justify at the trial.

Their Lordships recognise that the immediate dismissal of an employee is a strong measure, and they have anxiously considered the evidence with a view to determine the question whether the trial judge was right in his finding that the respondent was guilty of gross negligence, which, coupled with his conduct at the interview of 21 December, was sufficient to justify his dismissal. On the one hand, it can be in exceptional circum-

[1937] 3 All ER 67 at 74

stances only that an employer is acting properly in summarily dismissing an employee on his committing a single act of negligence; on the other, their Lordships would be very loath to assent to the view that a single outbreak of bad temper, accompanied, it may be, with regrettable language, is a sufficient ground for dismissal. Sir John Beaumont CJ was stating a proposition of mere good sense when he observed that in such cases one must apply the standards of men, and not those of angels, and remember that men are apt to show temper when reprimanded. Placing, however, all proper weight on these considerations, their Lordships have yet to determine, in view of the facts found by the trial judge, apart, of course, from the vital finding that the circumstances justified dismissal, whether the misconduct of the respondent was not such as to interfere with and to prejudice the safe and proper conduct of the business of the company, and therefore to justify immediate dismissal. It must be remembered that the test to be applied must vary with the nature of the business and the position held by the employee, and that decisions in other cases are of little value. We have here to deal with the business of life insurance. A mistake in accepting a risk may lead to a very considerable loss, and repetition of such mistakes may lead to disaster. The undertaking is one in which the undertaking of each individual risk is necessarily hazardous, and it is only by unremitting care and prudence that the business can profitably be carried on. If an officer of a life insurance company, whatever his motive may be, withholds from his superiors information which will in all probability lead them to refuse a risk, and a fortiori if it is one of exceptional character and magnitude, it would seem to be very difficult for his superiors to be confident that he will, in the future, properly carry out the important duties entrusted to him. In other words, if a person in charge of the life assurance department, subject to the supervision of superior officers, shows by his conduct or his negligence that he can no longer command their confidence, and if, when an explanation is called for, he refuses apology or amendment, it seems to their Lordships that his immediate dismissal is justifiable.

Some, at least, of the above considerations seem not to have been present to the minds of the judges on the appeal to the High Court. In particular, their Lordships cannot agree that the respondent was guilty of a mere error of judgment. They are satisfied, from the evidence given at the trial, that the respondent recommended the issue of the endowment policy, well knowing that the managing governor would have rejected it, and in the hope or the expectation that Mr Iyer would not remember the facts as to the re-insurance proposal. They take a serious view as to the interview of 21 December, and they draw a different inference from that of the judges as to the true meaning of the respondent’s behaviour. Further, and with all respect to the judges in the Appeal Court, they are of opinion that it is a mistake to consider the action of the respondent in approving the risk, and his conduct at the interview,

[1937] 3 All ER 67 at 75

as if these two matters could separately be excused or explained. They are in truth inseparable from the point of view of the action of Mr Mody and Mr Iyer in giving the notice of dismissal. On a review of the whole case, their Lordships must come to the conclusion that the trial judge was justified in his view of the facts, and in the conclusion at which he arrived.

For the reasons above stated, their Lordships are of opinion that the appeal should be allowed, the decree of the Division Bench set aside, and the decree of the trial judge restored. The respondent will pay to the appellant company its costs of the appeal to the Division Bench and of this appeal, in addition to the costs awarded by the trial court. They will humbly advise His Majesty accordingly.

Solicitors: E F Turner & Sons (for the appellant company); T L Wilson & Co (for the respondent).

T A Dillon Esq Barrister.

[Unlawful Dismissal] Sinclair v Neighbour

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The plaintiff was employed by the defendant, a bookmaker and the proprietor of betting shops, as the manager of one of the defendant’s betting shops at a salary of £22 per week and 5 per cent. commission on the net profits of the shop. The plaintiff took £20 out of the till, £5 for petty cash expenses and £15 which he borrowed for the purpose of placing a bet in another betting shop. He knew that if he had asked the defendant for permission to borrow money from the till for gambling, it would have been refused. The plaintiff put an IOU for £15 into the till, which he took out the next day when he repaid the money into the till, his bet having turned out to be successful. The defendant, on hearing

[1967] 2 Q.B. 279 Page 280

of what had happened, dismissed the plaintiff summarily. In an action by the plaintiff against the defendant for damages for wrongful dismissal, the judge held that, although the plaintiff’s conduct was improper and reprehensible, it was not dishonest, and, therefore, the defendant was not entitled to dismiss the plaintiff summarily; he, accordingly, awarded the plaintiff £88 damages (being four weeks’ salary) and ordered the registrar to take an account of the commission due to the plaintiff.

On appeal by the defendant:-

Held, allowing the appeal, that even though the plaintiff’s conduct might not have been dishonest, it was nevertheless conduct of such a grave and weighty character as to undermine the relationship of confidence which should exist between master and servant, and, therefore, the defendant’s summary dismissal of the plaintiff was justified (post, pp. 287D, 289A-C, 290B).

Boston Deep Sea Fishing and Ice Co. v. Ansell (1888) 39 Ch.D. 339, C.A. applied.

APPEAL from Judge Baxter, sitting at West London County Court.

The plaintiff, Gerald Sinclair (hereinafter called “the manager”), was employed by the defendant, George Neighbour (hereinafter called “the employer”), who was a bookmaker and proprietor of betting shops, as the manager of the employer’s betting shop at Warwick Road, Kensington, W.8, in the county of Greater London. He commenced employment with the employer on March 23, 1965, as a settler and on March 29, 1965, was appointed manager at a salary of £22 per week and 5 per cent. commission on the net profits of the shop, commission to be payable monthly. On April 26, 1965, the manager came to the shop and found that he had no money on him. He said that he inadvertently left his wallet at home. He was a compulsive gambler and could not resist the urge to bet. He, therefore, took £20 out of the till, of which £5 was for petty cash expenses. He borrowed the remaining £15 for the purpose of placing a bet on his own behalf in another betting shop, putting an IOU for £15 into the till. He knew that the employer, if asked for his permission, would not have approved of borrowing from the till for the purposes of gambling. He placed his bet in another betting shop, which turned out to be successful, and on the next day he replaced the £15 in the till and took out the IOU. He told the two other employees in the shop, one of whom was a boy of some 18 or 19 years who was the grandson of the employer and the other an elderly man employed as a boardman, that he was borrowing the money. The boy told him that money had been borrowed from the till by

[1967] 2 Q.B. 279 Page 281

the previous manager. The other employee informed the employer on April 27, 1965, of what had transpired, and the employer thereupon summarily dismissed the manager.

In an action by the manager against the employer for damages for wrongful dismissal, the judge held that, although the manager’s conduct was improper and reprehensible, it was not dishonest and, therefore, the employer was not entitled to dismiss the manager summarily. He, accordingly, awarded the manager £88 damages (being four weeks’ salary at £22 per week) and ordered the registrar to take an account of the commission due to the manager. The employer appealed on the ground that the judge ought to have found that the manager’s conduct was dishonest or, alternatively, if not dishonest, that it was of such a character that the employer was entitled to dismiss the manager without giving notice.

Peter Bruce for the employer. This case is important for betting shops where large sums in cash pass through the hands of managers and other employees. In the present case the turnover of the shop in question was £1,000 per week. The judge accepted that the manager’s conduct was utterly reprehensible, and he said that he himself would have dismissed the manager immediately, but would have given the manager wages in lieu of notice. What that means on the judge’s findings is that an employer must pay £88 to an employee who has acted in this reprehensible way or else continue in employment a man who is completely unreliable. The employer submits that on the judge’s findings he should have held that the manager was dishonest and, therefore, that the employer’s summary dismissal of the manager was justified.

The judge has adopted the wrong test for deciding what amounts to dishonesty in cases of wrongful dismissal: he applied the test which is applicable in criminal law where a servant is accused of larceny, namely whether the particular accused person acted with a dishonest intent. That is a purely subjective test which is appropriate in criminal law. But in civil proceedings the test is not subjective, but objective. The position in civil proceedings for wrongful dismissal is that where a servant is guilty of a gross breach of good faith his employer is entitled to dismiss him for dishonesty. The employer submits that the taking of money by an employee out of the till when the employee knew that it would be forbidden by the employer, if the employer were asked for permission, is dishonest. The test in civil cases of dishonesty where

[1967] 2 Q.B. 279 Page 282

the question arises whether a dismissal is justifiable is: has the employee acted dishonestly, having regard to his obligations vis-à-vis the employer? The judge relied on the fact that the two other employees in the betting shop knew that the manager had borrowed the money and also upon the fact that the manager’s loan was not surreptitious. But those matters can have no relevance where the test is objective, although they may be highly material where the question is whether the employee subjectively had a dishonest intent.

The point in the appeal is whether a servant who, without consent, puts his hand into the till to do his own betting can be summarily dismissed. The employer submits that such conduct merits the term “dishonest”. It is per se dishonest.

Even if the manager is only to be regarded as guilty of gross misconduct, the employer was entitled to dismiss him summarily.

[SELLERS L.J. You pleaded that he dishonestly misappropriated the money in the till.]

If, though an employer pleads dishonesty, he proves gross misconduct he is still entitled to succeed. There is no onus on the employer to establish every word which he puts in his pleading. The question is whether he establishes sufficient to justify summary dismissal. Even if the employer be confined strictly to his pleadings, he can succeed by way of amendment. In any event, it is a rule of pleading that the greater includes the less. Even in criminal proceedings on indictment if the charge be that a servant stole £800 the prosecution does not fail simply because it is proved that he stole only £300. The judge here has misdirected himself in relying on the burden of the criminal law, whereas here the appropriate test is the approach of the civil law. Once the position is obtained that a man as manager admits to being a compulsive gambler with access to the till and admits that he has borrowed money without permission from the till he is unsuitable to continue as a manager, and his employer is entitled to dismiss him summarily. Otherwise the employer would be left in the quandary of having to keep in employment a person who is obviously unfit for the job: the law would never be so foolish as to require that. The fact that the servant does not think that what he has done is wrong is not a relevant matter: see perFry, L.J. in Boston Deep Sea Fishing and Ice Co. v. Ansell.1

The question here arises in contract, not crime. The question is: has the conduct of the employee amounted to a repudiation

1 (1888) 39 Ch.D. 339, 369, C.A.

[1967] 2 Q.B. 279 Page 283

of the obligations which he has undertaken under his contract of employment? If he has committed an act which is incompatible with the due discharge of his obligations under the contract, the employer can dismiss him summarily; see per Lord Esher M.R. in Pearce v. Foster,2 where a clerk who had speculated in differences on the stock exchange was held to have been justifiably dismissed summarily. The same principle is set out in Halsbury’s Laws of England, 3rd ed. vol. 25 (1958), p. 485, para. 934. The principle there stated is that if an employee does anything incompatible with the due and faithful discharge of his duty to his employer, his employer can dismiss him summarily. Even misconduct outside the course of a servant’s employment justifies summary dismissal. It must a fortiori be justifiable if it becomes impossible in practice for an employer to continue to employ an employee because of some act which he has done which is incompatible with his duty. The principle of Boston Deep Sea Fishing and Ice Co. v. Ansell3 is that, if a servant puts himself in a position where he has the temptation not to perform his duty faithfully, he can be dismissed without notice. The Court of Appeal there repudiated the view that, if the act in question was an isolated act, it could not be a breach by the employee of his employment which would justify his dismissal without notice: see per Bowen L.J.4 He said4 that if there is a violation of the relationship of confidence which should exist between an employer and an employee he can be dismissed. The employer submits that the manager’s misconduct in the present case was of such a gross nature and so immediate in its effect that it properly merited and required peremptory dismissal. Here is a man in a position of trust with money in his care and with employees under his supervision who abused that trust and dishonestly interfered with that money. The judge was in error in saying that he would dismiss the employee and yet pay him money in lieu of notice. If an employer is entitled to dismiss his employee, there is no need for the employer to offer any money to the employee. An employer can always dismiss an employee by giving him notice, or by offering him wages in lieu of notice, without assigning any reasons. It is only where there is a breach of contract which goes to the root of the employment that the employer is entitled to dismiss the employee without notice. Where he is entitled to dismiss the employee without notice, he need not offer any money.

2 (1886) 17 Q.B.D. 536, 539; 2 T.L.R. 534, C.A.
3 39 Ch.D. 339.
4 Ibid. 363.

[1967] 2 Q.B. 279 Page 284

David Croft for the manager. The basic finding of the judge is that the manager was not dishonest. The manager inadvertently left his wallet at his home and he had sufficient money in his wallet to repay the money which he borrowed from the till. Moreover, he had an intention to repay. Where there is an intention by a person who borrows money to repay that money and he has a capacity to repay that money there cannot be a finding of dishonesty: Reg. v. Williams.5

[SELLERS L.J. That is evidence of whether there is dishonesty to go before the jury in a criminal case. But do you require conviction for dishonesty before you can dismiss your servant?]

Honesty must be the same in civil as in criminal law. It is not suggested that any act which is not criminal cannot be dishonest. It is admitted that the two are not necessarily co-extensive. But having shown that the manager took the money from the till, then unless it can be proved that there was a dishonest intent on his part it would not be a crime and would not constitute dishonesty. The quality of the act must be the same in whatever branch of the law the court is concerned. The test of honesty must depend on whether there is a corrupt intent. A lie need not necessarily be dishonest; it can be a white lie which is told to prevent humiliating someone’s feeling. The case here was throughout treated on the basis of whether the manager was dishonest. The employer was entitled to dismiss the manager only if the manager was dishonest, and he was not entitled to dismiss him on the ground that the manager had been guilty of some improper conduct which fell short of being dishonest. First, because the employer pleaded his case in that way and should be bound by his pleadings. An allegation of dishonesty is a serious allegation, and it was the allegation which was made in the pleadings, the correspondence between the parties before action, and throughout the case at the trial. Secondly, the manager having been dismissed on the ground of dishonesty and of theft, had then to find other employment where he had to be prepared to meet the allegation. It was a serious allegation to make reflecting as it does on his character and he was entitled to rebut it. Therefore, the sole question before the judge was whether he was guilty of dishonesty, that is to say of a corrupt intent. Although the question here arises in contract, one must decide whether the conduct of the manager was dishonest. For this purpose the principle that the greater includes the less does not apply because the misconduct

5 [1953] 1 Q.B. 660; [1953] 2 W.L.R. 937; [1953] 1 All E.R. 1068, C.C.A.

[1967] 2 Q.B. 279 Page 285

different character. A servant cannot be dismissed on the ground of misconduct merely because of a lapse on his part: see per Lord Esher M.R. in Proctor v. Bacon.6

[SELLERS L.J. There the reason given for the dismissal was a trivial one.]

In the present case the allegation of dishonesty was raised and, if that had been proved by the employer, that would have been sufficient to justify the summary dismissal of the manager. But if he has to rely on misconduct, then there are two elements to consider: first, the breach of the relationship of confidence between the employer and the employee, and secondly, the gravity of the breach of that relationship. It is necessary in weighing the gravity of the breach to go into all the circumstances of the case. The court would need to investigate the relationship in the present case between the manager and the grandson of the employer who was employed in the betting shop and also the question whether the manager could reasonably assume that he need not telephone the employer for permission for the loan. In view of the nature of the pleadings the judge did not investigate the relationship between the parties in all the circumstances of the case. All that was investigated was the fact that the manager borrowed the money from the till, repaid it the next day, and that the employer would not have given permission for that loan. There is also the fact that it was an isolated case of borrowing from the till when the manager had inadvertently left his wallet at home. There is no suggestion that the manager permitted the other employees to borrow from the till nor any suggestion that he habitually gambled while he was in charge of the shop or habitually borrowed from the till. It is necessary to look at the manager’s behaviour and at the background to the whole case to see if his misconduct was sufficiently serious to merit instant dismissal. If an allegation of misconduct had been pleaded in the alternative by the employer, those matters would have been investigated. Failure on the part of the employer to plead misconduct as a ground for dismissal of the manager has meant that these matters were not investigated in the court below. Therefore, the employer should be bound strictly by his pleading and since he pleaded dishonesty and relied on dishonesty as a ground for dismissing the manager he should prove it or else fail in his defence.

6 (1885) 2 T.L.R. 845.

[1967] 2 Q.B. 279 Page 286

[SACHS L.J. An employee takes money without his employer’s knowledge, behind his employer’s back and against his wishes. Is that not dishonest?]

There would be no dishonesty if there was no corrupt intention. The court would not be whittling down any standard of conduct by saying that that conduct would not be dishonest. The note to R.S.C., Ord. 18, r. 12 at p. 385 of The Annual Practice (1966) says that the facts relied on as particulars of misconduct must be stated with especial particularity and care. In the present case that was not done. Unless the employer can prove dishonesty on the part of the manager, he is not entitled to succeed in his defence. For that was the ground upon which he relied and that is the ground which it falls upon him to make out. The fact that the manager’s conduct was improper cannot be investigated now so as to see whether it was sufficiently serious to justify dismissal without notice. For the Court of Appeal is not aware of all the circumstances of the case and unless it is aware of all the circumstances that matter cannot be decided. The judge’s finding that the manager was not dishonest was right and should not be disturbed. Therefore, the appeal should be dismissed.

Peter Bruce was not called upon to reply.

SELLERS L.J. In this case the employer might well have been content in all the circumstances to have left the judgment of the judge where it was. But he has thought fit to appeal, and this court has to deal with it and seek to draw the right conclusions from the evidence. The manager claimed damages for wrongful dismissal. He had been employed for very little more than a month. He had come on the staff for a short time in the employer’s business and had been made on March 29, 1965, the manager of a betting shop in Warwick Road, Kensington, the employer being a bookmaker and the owner of that and other shops as well. The manager was given peremptory notice of dismissal on April 27, 1965. The ground of dismissal which was alleged against him in the pleading was misconduct, which in the particulars was developed into dishonest misappropriation of some money. It appears that in that short interval of time the manager had taken some money out of the till because he wished to place a bet – outside the business. He seems, on the day before he was dismissed, on April 26, to have taken £5 out of the till – which he said he was entitled to take for petty cash: the matter is left obscure as to what happened to that – and in addition he

[1967] 2 Q.B. 279 Page 287

took £15, went outside, and used it to back some venture. Apparently, that was successful. It is said that he put in an IOU; and he repaid the money the next day.

This case turns on the attitude which the employer could properly take to that conduct. It seems that the manager not infrequently used to telephone to the employer. He said he did it too often and so he did not think he would do it again over this matter. He took the money without asking. He thought that if he had asked, the employer might have lent him the money for some purposes, but that if he had told the employer that it was for betting the employer would not have agreed. He would not have permitted it. In my view, whether such taking of the money would have resulted in a conviction for larceny or for dishonest misappropriation of the money does not arise. On these facts a jury might have taken the view that they would not convict. But whether it is to be described as dishonest misconduct or not, I do not think matters. Views might differ. It was sufficient for the employer if he could, in all the circumstances, regard what the manager did as being something which was seriously inconsistent – incompatible – with his duty as the manager in the business in which he was engaged.

To take money out of the till in such circumstances is on the face of it incompatible and inconsistent with his duty. Some people might well say that to take money out of the till, when the manager knew that if he had asked if he could do it for the purpose which he might have had to disclose it would have been refused, is dishonest conduct. The question for this court to decide is whether, in the circumstances of this case, it was conduct in its nature, as it has been described, quite irrespective of any point of pleading, which justified the employer instantly dismissing the manager.

I think that it was. Counsel referred to some of the cases. I do not think that I need refer to them further. The whole question is whether that conduct was of such a type that it was inconsistent, in a grave way – incompatible – with the employment in which he had been engaged as a manager.

There was an aggravating feature, I think, in that there were in the office two others, including one boy who was only some 18 or 19 years of age who had said something about borrowing money out of the till and it was said that it had been done before. On a new manager coming in, I should have thought that the one thing that was incumbent upon him was to keep the

[1967] 2 Q.B. 279 Page 288

till inviolate. The practice of taking money out of the till in that way, as all who have had experience in criminal courts know, can lead to endless trouble.

On the short facts of this case, and applying the law as I understand it, since we have been asked to do so, I would not hesitate to say that the dismissal was justified. I would allow the appeal accordingly.

DAVIES L.J. I agree.

The judge, in his very careful judgment, concentrated really on the employer’s pleading, in which was set out the alleged justification for the summary dismissal of the manager. In paragraph 3 it was stated:

“It was an implied term of the contract that the [manager] should not misconduct himself in the [employer’s] service, but before [April 27, 1965] the [manager] so misconducted himself and thereupon the [employer] dismissed him. …”

Under the particulars of that it was said:

“On April 26, 1965, the [manager] dishonestly appropriated to his own use the sum of £20, being money belonging to the [employer], or, in the alternative, money received by the [manager] for the use of the [employer] or his firm.”

There were various other further and better particulars.

It is perfectly true, as Mr. Croft pointed out in his argument, that the allegation throughout was one of dishonesty. The judge, having found the facts as they have been indicated by my lord, said:

“The reason given in the defence” – that is, for the dismissal – “is that the [manager] dishonestly misappropriated his employer’s money. He certainly misappropriated the £15. He knew that his employer would not have given leave to take the money for gambling. But I doubt that he took the money dishonestly. He was responsible for all money and would have to replace losses: he put in an IOU. He knew he would have to find the money as manager. He did return the money and before he was found out. He called attention to the fact that there was a deficiency and thereby invited an investigation. He told his subordinates that he was borrowing the money. He made no secret of the matter, though he could have borrowed surreptitiously. I have to come to the conclusion that, much as I disapprove of the [manager’s] conduct and sympathise with the [employer], I do not think that the [manager] was dishonest; his conduct was misguided foolish, improper and reprehensible, but not dishonest and that is what is pleaded.”

[1967] 2 Q.B. 279 Page 289

With the greatest respect to the judge, I think that he fell into error in attaching too much weight to the label and not enough to the facts. The facts were established. The fact that the manager took the money from his employer’s till behind his back knowing that the employer would not consent was established; and it seems to me that it does not really matter very much whether that justifies the label “dishonest” or not. The judge ought to have gone on to consider whether even if falling short of dishonesty the manager’s conduct was nevertheless conduct of such a grave and weighty character as to amount to a breach of the confidential relationship between master and servant, such as would render the servant unfit for continuance in the master’s employment and give the master the right to discharge him immediately.

In my judgment, on the facts of this case the manager’s conduct clearly fell within that latter category; and I have no doubt at all that the employer was, therefore, entitled to dismiss him.

I would merely add something on another point made by Mr. Bruce for the employer. The judge, as I have said, came to the conclusion that the manager’s conduct was quite reprehensible and that, had the judge been the master in similar circumstances, he would himself have dismissed the manager instantly. Nevertheless, the judge, having come to the conclusion that he did, went on to hold that the manager was entitled to £88, which was four weeks’ wages, in lieu of notice, plus commission for the appropriate period. It does seem to me to throw a most tremendous burden on an employer, who finds that his servant has been guilty of “reprehensible, foolish, improper, misguided conduct,” that he must either leave him in office for whatever is the appropriate period of notice, when ex concessis he is unfit for the office, or, alternatively, give him wages in lieu of notice, and, semble, pay somebody else to do the job. That would seem, in the circumstances of this case, to be a wholly unreasonable position for the master to be forced into. I agree that the appeal succeeds.

SACHS L.J.: It is well-established law that a servant can be instantly dismissed when his conduct is such that it not only amounts to a wrongful act inconsistent with his duty towards his master but is also inconsistent with the continuance of confidence between them. That was said by Bowen L.J. in his classic judgment in Boston Deep Sea Fishing and Ice Co. v. Ansell.1

1 (1888) 39 Ch.D. 339, 363, C.A.

[1967] 2 Q.B. 279 Page 290

Here we have a case where the manager of a betting shop, responsible for the conduct of the shop and of the other employees there, quite deliberately takes out of the till money for his own personal purposes, in circumstances which he knew quite well his employer, if asked, would not permit.

To state those facts quite simply seems to me enough to make plain that here indeed there was beyond a peradventure misconduct of a type which justified instant dismissal; and I agree with the judge’s view where he uses the adjectives “utterly reprehensible” and “improper” in regard to that conduct.

I would add that, where you get such wrongful conduct as goes to the basis of confidence between employer and employee, it is wrong to suggest (as the judge did) that such a set of circumstances ought in law not to be met by immediate dismissal, unless accompanied by a payment of money in lieu of notice.

For my part, I go a little further, as regards my description of the conduct of a manager which I have just described. As between the employer and the employee (and that seems to me to be the cardinal matter), where the former deliberately takes money illicitly behind the back of his employer and appropriates it, even temporarily, for his own use, knowing that the employer would disapprove, that is sufficient, to my mind, to establish that as between the employer and the employee that conduct is dishonest. I agree, and would allow the appeal.

Solicitors: Bower, Cotton & Bower for Kidd, Rapinet, Badge & Co., Slough; Donald Silk & Co.

N. P.

[Unlawful Dismissal] Laws v London Chronicle

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A few weeks after the plaintiff had joined the employ of the defendant company she was dismissed summarily for disobeying an order given by the chairman and managing director. During a business meeting which the plaintiff had been required to attend, the plaintiff’s immediate superior, D., had an altercation with the chairman and managing director and D. left the meeting, inviting the plaintiff and another employee to accompany him. The chairman and managing director told the two employees to stay where they were but they both left the room. Having been summarily dismissed, the plaintiff brought proceedings:—

Held , that this single act of disobedience did not justify the summary dismissal of the plaintiff; it was not an act showing a wilful disregard of the essentials of the contract of service which amounted to a repudiation of the contract by the plaintiff; accordingly the plaintiff was entitled to damages for wrongful dismissal.

Dictum of Lord James of Hereford in Clouston & Co. Ltd. v. Corry [1906] A.C. 122, 129 applied.

Turner v. Mason (1845) 14 M. & W. 112 distinguished.

[1959] 1 WLR 698 at 699

APPEAL from Judge Dale, sitting at the Westminster County Court.

By a letter dated May 28, 1958, the defendant company offered the plaintiff employment as an “advertisement representative” at a weekly salary of £10 with 5 per cent. commission. The employment was expressed to be terminable on either party giving one month’s notice. The letter was signed by one Delderfield, the manager of the advertising staff. On Friday, June 20, the plaintiff and the other members — of the advertisement staff were required to attend a meeting in the room of the chairman and managing director, a Mr. Brittain. The meeting was convened to hear observations of a Mr. Blakey, on matters of business efficiency. During the meeting Mr. Brittain had an altercation with Delderfield. It was suggested that Delderfield was drunk and that he needed black coffee to calm him. He said that he would stand no more and would go “taking the staff” with him. He did leave, inviting his two juniors to accompany him. Brittain said to them “Stay where you are,” but they both left the room.

On the following Monday, June 23, when the plaintiff attended the defendants’ premises she was handed a letter, addressed to her by the secretary, which stated:

As a result the plaintiff left the service of the defendant company.

She brought proceedings for wrongful dismissal and claimed damages. The defendants denied that she had been dismissed, but said that, if there was dismissal, it was not wrongful. The county court judge awarded her £45 damages and costs, and the defendants appealed on the issue of wrongful dismissal only.

LORD EVERSHED M.R. stated the facts and continued: It is the corner-stone of Mr. Stable’s case that there was in truth nothing that a self-respecting employer could do but to dismiss summarily: for here was an order given — “Stay where you are” — and disobeyed. Mr. Stable has cited authority — of antiquity, but none the less of respectability — to show that disobedience (as he contends) of any order that is lawful entitles the employer to dismiss the servant summarily. In Turner v. Mason³ a domestic servant — quite deliberately, because she had made a request[1959] 1 WLR 698 at 700which was rejected — absented herself during a certain night when she should have been on duty; and her plea of justification was that her mother was desperately ill — though it is not clear that she so informed her employer. She was dismissed; and the court of Queen’s Bench affirmed the view that the dismissal was justified. I will not read the judgments of Parke C.B. and Barons Alderson and Rolfe; but it would in my judgment be going too far to say that any of those judges laid it down as a proposition of law that every act of disobedience of a lawful order must entitle the employer to dismiss. I think that cannot be extracted from the judgments; and I am satisfied that it is too narrow a proposition as one of law.

The law to be applied is stated (for example) in the paragraphs of Halsbury’s Laws of England, 3rd ed., Vol. 25, at pp. 485 and 486, to which Mr. Stable referred us in reply; and I will cite a sentence or two as a foundation to what follows. “Wilful disobedience to the lawful and reasonable order of the master justifies summary dismissal.” Then, a little later,

Later, again,

And in one of the footnotes on that page there is a further statement, in reference to Edwards v. Levy,⁴ observing that in that case

To my mind, the proper conclusion to be drawn from the passages I have cited and the cases to which we have been referred is that, since a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that the question must be — if summary dismissal is claimed to be justifiable — whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. It is, no doubt, therefore, generally true that wilful disobedience of an order will justify summary dismissal, since wilful disobedience of a lawful and reasonable order shows a disregard — a complete disregard — of a condition essential to the contract of service, namely, the condition that the servant must obey the proper orders of the master, and that unless he does so the relationship is, so to speak, struck at fundamentally.

In the passages which I have read, it will be remembered, there is a statement “… there is no fixed rule of law defining the degree of misconduct which will justify dismissal.” That statement is derived from the judgment of the Privy Council delivered by Lord James of Hereford in the case to which Mr.[1959] 1 WLR 698 at 701Stewart referred of Clouston & Co. Ltd. v. Corry.⁵ I will read a rather larger passage which provides the context. Lord James said:

In the present case, the judge, in the course of his judgment, said:

and later he concluded, in the plaintiff’s favour, that what she had done, or not done, on June 20 was not sufficiently grave to justify dismissal.

With all respect to the judge, I think that his proposition is not justified in the form in which he stated it. I think it is not right to say that one act of disobedience, to justify dismissal, must be of a grave and serious character. I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that you find in the passages I have read that the disobedience must at least have the quality that it is “wilful”: it does (in other words) connote a deliberate flouting of the essential contractual conditions.

If I have stated correctly the basis of the law to be applied, let me return to the facts of this case. I do not narrate again the circumstances in the chairman’s room on the afternoon of June 20, 1958. But the plaintiff said:

I have no doubt that the judge (who saw the witnesses) believed her: for, in the final paragraph of his judgment, he said:

As I have said, I take it (and no ground for a contrary view has been put to us) that the judge did accept her as a witness of truth. The situation was plainly one which was as embarrassing as it was unpleasant for her; and in the circumstances, with her immediate superior walking out and asking her to follow, I am satisfied that it cannot be said that her conduct[1959] 1 WLR 698 at 702did amount to such a lawful disobedience of an order, such a deliberate disregard of the conditions of service, as justified the employer. in saying “I accept your repudiation: I treat the contract as ended: I summarily dismiss you.”

I am a little comforted, I must say, by the circumstance that, when Mr. Campbell wrote his letter on Monday, June 23, he did, after all, refer to Mr. Brittain’s remark “You stay where you are,” not as an order, but as a “request.” It was in truth not really an order related to her duties as advertisement representative: it was a wise direction for him to have given in order to try to create out of disorder something more seemly in his room on the afternoon in question.

For those reasons, though I have, as I say, felt that the judge in his brief statement may not quite correctly have stated the law to be applied, and to that extent I accept the argument put to us by Mr. Stable, none the less in the end I come — and I come, I must say, unhesitatingly — to the same conclusion as the judge; and would dismiss the appeal.

LORD JENKINS. I agree; and cannot usefully add anything.

WILLMER L.J. I also agree.

E. D.

[Unlawful Dismissal] Denco Ltd v Joinson

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The employee, who was a sheet metal worker and who was also a trade union shop steward, was an authorised user of the employers’ computer with his own password which permitted him entry to the menu containing engineering information. He was accused by the employers of using the identity code and password belonging to an employee of the employers’ wholly owned subsidiary company, which used the same computer, to obtain access to information which could be of use to him in his trade union activities and hostile to the interests of the company. The employee admitted that he had obtained access to unauthorised information but claimed that he had done so by accident. He was summarily dismissed for gross misconduct and on his complaint of unfair dismissal, an industrial tribunal found that the employers were reasonable in concluding that the employee had deliberately gained access to unauthorised information but that they had not given any reasonable ground for their conclusion that his purpose was illegitimate and that his dismissal was therefore unfair.

On the employers’ appeal: —

Held , allowing the appeal, that if an employee deliberately used an unauthorised password in order to enter a computer known to contain information to which he was not entitled, that was of itself gross misconduct which prima facie would attract summary dismissal; that the industrial tribunal had misdirected themselves in law in requiring the employers to show reasonable grounds for believing that the employee had an illegitimate purpose in obtaining access to a particular programme and the case would be remitted to the tribunal for further hearing (post, p. 335A–B, E–G).

Per curiam. Unauthorised use of or tampering with computers is an extremely serious industrial offence. However it is clearly desirable to reduce into writing rules concerning the access to and use of computers and not only to display them but to leave them near the computers for reference (post, p. 336B–D).

The following cases are referred to in the judgment:

Parsons (C.A.) & Co. Ltd. v. McLoughlin [1978] I.R.L.R. 65, E.A.T.

Polkey v. A.E. Dayton Services Ltd. [1987] 1 W.L.R. 1147; [1987] I.C.R. 301; [1987] 1 All E.R. 984, C.A.; [1988] A.C. 344; [1987] 3 W.L.R. 1153; [1988] I.C.R. 142; [1987] 3 All E.R. 974, H.L.(E.)

No additional cases were cited in argument.

APPEAL from an industrial tribunal sitting at Hereford.

In April 1988, the employee, Michael Joinson, presented a complaint that he had been unfairly dismissed by the employers, Denco Ltd. By a decision sent to the parties on 20 September 1988, the industrial tribunal upheld his complaint. The employers appealed on the ground that the[1991] 1 WLR 330 at 331industrial tribunal had erred in law in failing to hold that the employee was guilty of gross misconduct because he deliberately used an unauthorised password to gain access to the computer and that his motive was immaterial.

The facts are stated in the judgment.

Cur. adv. vult.

14 November. WOOD J. handed down the following judgment of the appeal tribunal. By an originating application of April 1988 Mr. Joinson, the employee, complained that he had been unfairly dismissed by his employers, Denco Ltd. An industrial tribunal sitting at Hereford under the chairmanship of Mr. Bird heard the case on 15 June 1988 and found in his favour. The employers now appeal. The matter came before us on 4 October 1989 at a preliminary hearing, when it was adjourned for full argument inter partes as the industrial members then sitting and those who are now sitting hold the view that it raises important aspects of conduct in the modern industrial world where computers play such a large role.

The industrial tribunal heard a number of witnesses and we have been supplied with admirably clear notes of evidence given by them. There were also a number of exhibits including a statement from the computer manager, Mr. Baker, and several computer print-outs. The industrial tribunal did not express any clear preference for the evidence of one witness rather than another save in connection with an interview and conversations between the employee and Mr. Walker, the manufacturing director, shortly after the crucial events of the night of 2 to 3 March 1988 in which instance they preferred the version given by the applicant. Otherwise, the facts do not seem to be seriously at issue and it is in the interpretation of those facts that the questions lie. The employers, from premises at Hereford, manufacture air drying and conditioning equipment used with computers. They employ some 300 people. Also based at Hereford is a wholly-owned subsidiary which makes raised module floors for computer suites. It is called, Intek Floors Ltd. (“Intek”).

At the relevant time the employee was aged 42. He had worked with the employers since 1967. He was a skilled sheet metal worker. He became a shop steward with the Amalgamated Engineering Union (“A.E.U.”) and had been appointed chairman of the joint representative committee comprising the A.E.U. and three other trade unions. Whilst the employees at the employer company had been represented by trade unions for some time, it was only recently that the A.E.U. had been recognised at Intek. There is nothing to say when that change came about. The employee was someone trusted by management and to whom in the past confidential information had been given — presumably in connection with his trade union responsibilities.

Some time before March 1988, described by the industrial tribunal as “recently,” the employers installed a new computer. Prior to that it was “positively encouraging people to operate the V.D.U. even if their jobs did not strictly require it.” Upon reading the evidence and as we have had it explained to us, the system existing at the beginning of March[1991] 1 WLR 330 at 3321988 was as follows. The same computer was in use for the employers and Intek. It had some 30 terminals. Within the computer there were a number of different sections or “menus” which were designed to provide all the information which was considered necessary for a particular department or departments within the company. Once a “menu” was on display the user could proceed further under various headings to obtain other and more detailed information. The reasons for the menus were two-fold. First to protect the information against accident, such as power cuts or malfunction, and secondly, for security and confidentiality.

In order to obtain access to a menu a user was required to enter a user identity code, usually the christian name of the authorised user, or where there was a group of authorised users, the christian name of the most senior. The next requirement was to insert the password. One would think it too obvious to need further explanation but a password was issued to limit access to the menus and thereafter the detailed information within it only to those authorised to have and to use it. This whole system was on a “need to know basis” and it was presumably because passwords might become more generally known during daily use within a department that they were changed every four to six weeks.

The system also had a history file built into it. Every single key stroke at any terminal was recorded on that system with the exception of passwords and the printouts were kept for a period of some two to three weeks. By reference to the history file it was possible to reconstruct all steps that were being taken in relation to any matter should this be necessary for the management to know.

The employee was an authorised user of the computer. He was a charge-hand on the night shift and a temporary supervisor. He was in a position of trust and had his own password which permitted him entry to the menu relevant to his position and expertise as a skilled sheet metal worker. This would be in the main engineering information.

To exit from the computer one pressed “two” then “four” then “enter.” This the employee knew as indeed did the other users.

The employee has a daughter — then aged 16. She had recently started training as an employee at Intek. Mrs. Tegwin Morse worked in the wages department at Intek. She and presumably those working with her had a password to gain access to a menu. The employee’s daughter had heard the password and also Mrs. Morse’s identity of “Teg” short for “Tegwin.”

The employee told the industrial tribunal that on 3 March he knew three passwords, including his own and one which he had heard from his daughter within the previous two to three weeks. She had explained during tea time at home that she had been working on the V.D.U. She told her father that the user identity being used was “Teg” and that the password was “Taff.” When told of the user identity the employee knew that this was Mrs. Morse. During that same conversation he in fact told his daugher his own password. We cannot think why.

On the night of 2 to 3 March 1988 the employers were running a major data processing operation on the central system. It was being done overnight because it required considerable computer time. The employee was working on the night shift in charge of the sheet metal workers and it was only that group or department which would have required any information from the computer during the night.

When the senior programmer arrived at the company on the morning of 3 March he called up the history file to ascertain whether the[1991] 1 WLR 330 at 333appropriate functions had been carried out for the overnight operation. He noted with surprise that other later operations were also shown which appeared to be unauthorised. This matter was brought to the attention of Mr. Baker, the computer manager.

The relevant printout was before the industrial tribunal and it showed that at 03.58 hours Mrs. Morse’s user identity “Teg” had been inserted, followed by a password. The first time that the password was entered it was incorrect and subsequently the correct password “Taff” was inserted. This clearly shows an intent deliberately to obtain access to that menu. Thereafter the menu appeared on the V.D.U. and this showed a choice of 13 operations. Number three was “printlist of customers.” The printout shows that no. 3 button was then pressed followed by the “enter” button. In fact nothing thereafter showed on the V.D.U. because an embargo had been placed on the screen in respect of the list of customers. However, at the master console from which the history file was being recorded a list of customers was in fact printed out. At the end of that operation the user signed off using first “two,” then “four,” and then “enter.” We would only add that of course you can erase if you make a mistake.

Mr. Baker spoke to the manufacturing director, Mr. Walker. He made inquiries of a Mr. Harman, the supervisor and Mr. Lewis, his equivalent on the day shift. He then tried to telephone the employee but the telephone was engaged. The employee learnt that Mr. Walker wished to see him and telephoned on the evening of Thursday 4 March and came in to see him at about 6 p.m.

It was clear from the printout that prior to the entries which gave rise to the inquiries the employee had quite properly and legitimately obtained necessary engineering information from the computer during that night.

At the interview Mr. Walker asked about the entries on the printout to which we have referred above. Initially the employee denied all knowledge. However, it is common ground that within a very short time he admitted to Mr. Walker and to Mr. Harman and the production manager, Mr. Chatterley, who were present, that he had gained access to the Intek file. His case was that he had been reluctant to disclose the fact because the information had come from his daughter; that he had done so by accident; that he had tried to get out; and then had pressed the wrong button.

Later on Friday 4 March the employee was told by Mrs. Griffiths, the personnel manager, that both he and his daughter were suspended on full pay pending further investigation. This surprised him because he had understood from his conversations with Mr. Walker that a less serious view might be taken of the position.

On 8 March he attended a meeting and was interviewed by Mr. Walker, Mr. Carter and Mrs. Griffiths. The employee explained that he was “playing around with the system” but this was not accepted by the management. A meeting was held the following day, Wednesday 9 March, and the employee was told that he was to be dismissed for gross misconduct. He launched an appeal which was heard on Friday 11 March by Mr. Carter; Mr. Walker was again present. His appeal was dismissed. On the following Thursday, 17 March, the local A.E.U. organiser and the area organiser spoke to Mr. Walker and Mrs. Griffiths in the presence of the employee accepting that he had done wrong but asking for leniency. The decision to dismiss was upheld.

[1991] 1 WLR 330 at 334

As set out in paragraph 15 of the industrial tribunal’s reasons the employers’ case was put as follows. They claimed that the decision to dismiss was reasonable for seven reasons:

“1. What the employee did was not considered accidental i.e. he intended to call up on the V.D.U. screen information about Intek. 2. The employee’s daughter had just joined Intek in the marketing department. 3. The employee had no business entering Intek’s password and playing around with Intek data. 4. The Intek company file contained confidential information and other options could have been chosen which also contained confidential information. 5. He used the code/password of Mrs. Morse who was responsible for wages. 6. He was A.E.U. representative for the respondent shop floor and the shop floor at Intek had also recently become members of the A.E.U. 7. It was obvious and clear that confidential information related to Intek and its customers, size of orders, wages and salaries of staff could be useful to the A.E.U. at Intek in negotiations with management.”

Of the seven reasons the industrial tribunal say this in paragraph 17:

The tribunal then continue in paragraph 18:

Later in paragraph 21 they say:

The employers argue that their case has been misunderstood. First, it was not necessary that in order to found a dismissal for gross misconduct management should be satisfied that there was a particular motive. It is quite sufficient to prove that an employee has deliberately used an unauthorised password to enter the computer. In fact, in the present case the employee was in a position of trust, knew how to operate the computer and was authorised to use it for some limited purposes.

[1991] 1 WLR 330 at 335

Secondly, the employers argue that if the motive of the employee is in any way material, it would only be that the management entertained a reasonable suspicion that the entry was for an improper motive.

The industrial members are clear in their view that in this modern industrial world if an employee deliberately uses an unauthorised password in order to enter or to attempt to enter a computer known to contain information to which he is not entitled, then that of itself is gross misconduct which prima facie will attract summary dismissal, although there may be some exceptional circumstances in which such a response might be held unreasonable. Basically, this is a question of “absolutes” and can be compared with dishonesty. However, because of the importance of preserving the integrity of a computer with its information it is important that management should make it abundantly clear to its workforce that interfering with it will carry severe penalties. Although it is not necessary to decide the practice in this case, cases may yet arise where evidence will show that the very tampering itself could produce malfunction with consequent damage and loss of information.

An analogy may be drawn with a situation where an employee enters the management offices of a company where he has no right to be, goes into an office, sees a key on the desk which he knows is the key to the filing cabinet which contains information to which he is not entitled and thereafter opens the filing cabinet and takes out a file.

If in the present case it had been material to consider whether there was evidence which in all the circumstances entitled management reasonably to have suspicion about the employee’s motive or purpose, then the present industrial members take the view that there was abundant such evidence. I agree with them.

When considering the issue of motive the industrial tribunal at one point say:

With respect that does not seem to us to be the point. The issue is what did the employee contemplate he might obtain by way of information by using the password of the wages department at Intek — a company by which he was not employed and the only connection with which would have been as a negotiator of pay.

It follows therefore from what we have said that we take a different view from that of the industrial tribunal of what can constitute gross misconduct in this case and also of the analysis of the employers’ argument. The employers have therefore succeeded in showing that there is a flaw in the industrial tribunal’s reasoning. What should we do? Are the facts so clear that we can safely reach our own conclusion on the approach which we have indicated or should the case be remitted?

The industrial tribunal was extremely critical of the security arrangements made by the employers in connection with use of the computer. It may be that in the light of the indications made above another industrial tribunal would take a less serious view. We have in mind a comment made in an earlier decision of this appeal tribunal, C.A. Parsons & Co. Ltd. v. McLoughlin [1978] I.R.L.R. 65. The conduct which was suggested to be gross misconduct in that case was[1991] 1 WLR 330 at 336fighting and the passage to which we would refer is in the judgment given by Kilner Brown J. where he said, at p. 65, para. 3:

It must surely be common sense that where a system such as the present has been instituted that the unauthorised use of a password is a very serious matter indeed. If it is not so realised by industry generally then perhaps this case will make it so. Unauthorised use of or tampering with computers is an extremely serious industrial offence. However it is clearly desirable to reduce into writing rules concerning the access to and use of computers and not only to post them but to leave them near the computers for reference.

This industrial tribunal was also by implication somewhat critical of the procedures without reaching a conclusion. It therefore seems to us that the employee should be entitled to re-argue his case on the fresh approach which we have indicated and to seek to persuade a fresh industrial tribunal that the principle of Polkey v. A.E. Dayton Services Ltd. [1987] 1 W.L.R. 1147 applies.

It also seems to us rather too bold a step, upon the assumption that this was a dismissal rendered unfair on procedural grounds, to proceed to the conclusion which may eventually become self-evident that this is not a case where any award should be made: section 74(1) of the Employment Protection (Consolidation) Act 1978.

We are therefore of the view that justice requires that this case be remitted for rehearing in accordance with any directions which may be given by the regional chairman.

J. W.

[Police Power] Collins v Wilcock [1984] 3 All ER 374

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Two police officers on duty in a police car observed two women in the street who appeared to be soliciting for the purpose of prostitution. One of the women was known to the police as a prostitute but the other, the appellant, was not a known prostitute. When the police officers requested the appellant to get into the car for questioning she refused to do so and instead walked away from the car. One of the officers, a policewoman, got out of the car and followed the appellant in order to question her regarding her identity and conduct and to caution her, if she was suspected of being a prostitute, in accordance with the approved police procedure for administering cautions for suspicious behaviour before charging a woman with being a prostitute, contrary to s 1^a of the Street Offences Act 1959. The appellant refused to speak to the policewoman and walked away, whereupon the policewoman took hold of the appellant’s arm to detain her. The appellant then swore at the policewoman and scratched the officer’s arm with her fingernails. The appellant was convicted of assaulting a police officer in the execution of her duty, contrary to s 51(1)^b of the Police Act 1964. She appealed against the conviction, contending that when the assault occurred the officer was not exercising her power of arrest and was acting beyond the scope of her duty in detaining the appellant by taking hold of her arm. The police contended that the officer was acting in the execution of her duty when the assault occurred because the officer had good cause to detain the appellant for the purpose of questioning her to see whether a caution for suspicious behaviour should be administered.

^a Section 1, as far as material, is set out at p 376 e f, post

^b Section 51(1), so far as material, provides: ‘Any person who assaults a constable in the execution of his duty … shall be guilty of an offence … ‘

Held – (1) Except when lawfully exercising his power of arrest or some other statutory power a police officer had no greater rights than an ordinary citizen to restrain another. Accordingly, whether a police officer’s conduct was lawful when detaining a person to question him in circumstances where the officer was not exercising his power of arrest or other statutory power depended on whether the physical contact the officer used to detain the person was no more than generally acceptable physical contact between two citizens for the purpose of one of them engaging the attention of the other and as such was lawful physical contact as between two ordinary citizens. If the conduct used by the officer went beyond such generally acceptable conduct, eg if the officer gripped a person’s arm or shoulder rather than merely laying a hand on his sleeve or tapping his shoulder, the officer’s conduct would constitute the infliction of unlawful force and thus constitute a battery (see p 378 j and p 379 a to e, post) dictum of Parke B in Rawlings v Till (1837) 3 M & W at 29, Kenlin v Gardiner [1966] 3 All ER 931, Ludlow v Burgess (1971) 75 Cr App R 227 and Bentley v Brudzinski (1982) 75 Cr App R 217 applied; Wiffin v Kincard (1807) 2 Bos & PNR 471 and Donnelly v Jackman [1970] 1 All ER 987 distinguished.

(2) The 1959 Act did not confer power on a police officer to stop and detain a woman who was a prostitute for the purpose of cautioning her. Furthermore, the fact that the

[1984] 3 All ER 374 at 375

reason an officer detained a woman was to caution her regarding her suspicious behaviour did not render the officer’s conduct lawful if in detaining her he used a degree of physical contact that went beyond lawful physical contact as between two ordinary citizens (see p 380 b to f, post).

(3) Since the policewoman had not been exercising her power of arrest when she detained the appellant, and since in taking hold of the appellant’s arm to detain her the policewoman’s conduct went beyond acceptable lawful physical contact between two citizens, it followed that the officer’s act constituted a battery on the appellant and that she had not been acting in the execution of her duty when the assault occurred. Accordingly the appeal would be allowed and the conviction quashed (see p 380 f g, post).

Cases referred to in judgment

Bentley v Brudzinski (1982) 75 Cr App R 217, DC.

Cole v Turner (1704) 6 Mod Rep 149, 90 ER 958, NP.

Coward v Baddeley (1859) 4 H & N 478, 157 ER 927.

Donnelly v Jackman [1970] 1 All ER 987, [1970] 1 WLR 562, DC.

Kenlin v Gardiner [1966] 3 All ER 931, [1967] 2 QB 510, [1967] 2 WLR 129, DC.

Ludlow v Burgess (1971) 75 Cr App R 227, DC.

Rawlings v Till (1837) 3 M & W 28, 150 ER 1042.

Tuberville v Savage (1669) 1 Mod Rep 3, 86 ER 684.

Wiffin v Kincard (1807) 2 Bos & PNR 471, 127 ER 713.

Case stated

Alexis Collins appealed by way of a case stated by a metropolitan stipendiary magistrate sitting at Marylebone Magistrates’ Court, against her conviction by the stipendiary magistrate on 20 January 1983 of assaulting the respondent, Wpc Tracey Wilcock, in the execution of her duty at Craven Road, London W2 on 22 July 1982, contrary to s 51(1) of the Police Act 1964. The question for the opinion of the High Court was whether a police constable was acting in the execution of her duty when detaining a woman against her will for the purpose of questioning her regarding her identity and her conduct which was such as to lead the constable to believe that she might have been soliciting men for the purpose of prostitution. The facts are set out in the judgment of the court.

W John Jones for the appellant.

Grant Armstrong for the respondent.

16 April 1984. The following judgment was delivered.

There is before the court an appeal by way of a case stated by a metropolitan stipendiary magistrate sitting at Marylebone, under which the appellant, Alexis Collins, appeals against her conviction on 20 January 1983, of assaulting the respondent, Tracey Wilcock, a constable of the Metropolitan Police Force, in the execution of her duty at Craven Road, London W2, on 22 July 1982, contrary to s 51(1) of the Police Act 1964.

The magistrate found the following facts. (a) On 22 July 1982 the respondent and

[1984] 3 All ER 374 at 376

Police Sgt Benjamen were on duty in a police vehicle and saw two women walking along the street; one of the two was a known prostitute, the other was the appellant. (b) The officers observed the two women, both of whom appeared to them to be soliciting men in the street. (c) The officers, without alighting from their vehicle, asked the two women to get into the police car so that they could have a word with them. One woman got into the car, the appellant refused to do so. (d) The officers repeated their request to the appellant, who again refused and walked away, followed by the police car which then pulled up alongside her. She again walked away. (e) The respondent, got out of the car and followed the appellant on foot, asking her why she didn’t want to talk to the police, and also for her name and address. The appellant again started to walk away. The respondent told her that she had not finished talking to her and the appellant replied, ‘Fuck off’, and started to walk away yet again. (f) The respondent took hold of the appellant by the left arm to restrain her and the appellant shouted, ‘Just fuck off, Copper’ and scratched the respondent’s right forearm with her fingernails. (g) The appellant was then arrested for assaulting a police officer in the execution of her duty.

Before the magistrate, the contentions of the parties were as follows. For the appellant, it was contended that the respondent was not acting in the execution of her duty at the time when the assault (if any) took place, having gone beyond the scope of her duty in detaining the appellant in circumstances short of arresting her. It was contended by the respondent, on the other hand, that there was on the evidence good ground for her to make inquiries and administer a caution under the Street Offences Act 1959, and that she was therefore acting in the execution of her duty at the time when the assault took place.

It may be convenient if at this stage we refer to the relevant provisions of the 1959 Act. Section 1(1) provides as follows:

‘It shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution.’

Section 1(3) provides:

‘A constable may arrest without warrant anyone he finds in a street or public place and suspects, with reasonable cause, to be committing an offence under this section.’

We should also refer to the system of cautioning which is adopted by the police. The procedure in the Metropolitan Police District has been described as follows (see Home Office circular 109/59):

‘On the first occasion when a woman who has not previously been convicted of loitering or soliciting for the purpose of prostitution is seen loitering or soliciting in a street or public place for that purpose, the officer seeing her will obtain the assistance of a second officer as a witness, and when both officers, after having kept the woman under observation, are satisfied by her demeanour and conduct that she is in fact loitering or soliciting for the purpose of prostitution, they will tell her what they have seen and caution her. Details of the caution will subsequently be recorded at the police station and in a central register for the Metropolitan Police District. The two officers, after administering the caution, will ask the woman if she is willing to be put in touch with a moral welfare organisation or a probation officer, and invite her to call at the police station at a convenient time to see a woman police officer for these arrangements … ‘

This system, which has been encouraged by the Home Office as a way of discouraging young women from becoming prostitutes, is extra-statutory. It has nevertheless received statutory recognition in that s 2 of the 1959 Act provides a procedure for applying to a court for an order that no entry be made in respect of a caution and that any entry already made be expunged. This procedure enables a respectable woman, who has been mistakenly identified by the police as a common prostitute, to have the records corrected.

[1984] 3 All ER 374 at 377

We were told that, in practice, the system of cautioning is carried into effect as follows. A police officer who observes a woman in a street or public place, whom he believes to be a common prostitute loitering or soliciting there for the purposes of prostitution, will approach her and ask her for her name and address. Having been given it, he will check by radio with the police station to ascertain whether there are any cautions on her record. If there are none, he will caution her; if there is one, he will administer a second caution; and if there are two, he will arrest her on suspicion of committing an offence under s 1(1). The system of cautioning, although intended to provide a warning, has the advantage that it will generally avoid any argument on the question whether a woman charged with an offence under s 1(1) is a ‘common prostitute’, an expression apparently lacking statutory or judicial definition or interpretation. The system also requires the co-operation of the woman in question in providing her name and address; and, since the system is designed to discourage women from embarking on a career of prostitution, it is understandable that police officers may think it right to persist in an attempt to give the caution, despite initial non-co-operation, rather than proceed without more ado to exercise the power of arrest under s 1(3) of the Act.

We turn back to the case stated by the magistrate. Having referred to certain authorities, the magistrate expressed himself as follows:

‘The facts of the case before me disclose that the Appellant and her companion had through their observed actions, given the Respondent and her police colleague good cause for believing that they were soliciting for the purposes of prostitution. Having that belief, the Officers were under a clear duty to investigate the question of an offence against Section 1 of The Street Offences Act, 1959. The ingredients of the offence include not only the actions of soliciting but also the status of the person concerned. Section 1 of that Act states that it is an offence for a common prostitute to loiter or solicit in a street or public place for the purposes of prostitution. The Appellant, unlike her companion, was not known to the Respondent to be a common prostitute at the time her actions were observed; accordingly, her status had to be established before a decision could be made as to future action by way of caution or arrest. To establish that status it was necessary to question the Appellant but the Appellant was completely uncooperative. I was of the opinion that the Respondent had a clear duty to persist in her enquiries and to require the Appellant to remain with her until the enquiry was complete. I considered that in the circumstances the placing of her hand on the Appellants arm to restrain her from moving away, yet again, was within her duty and was not unreasonable. Being satisfied that the Appellant had assaulted the Respondent I found the Appellant guilty and ordered her to pay a fine of £50·4300.’

The magistrate then stated the following question for the opinion of the court:

‘The question for the consideration of the High Court is whether a Police Constable is acting in the execution of her duty when detaining a woman against her will for the purpose of questioning her regarding her identity and her conduct which was such as to lead the Constable to believe she may have been soliciting men.’

In considering this question, which is drawn in wide terms, we think it important to observe that in this case it is found as a fact that the respondent took hold of the appellant by the left arm to restrain her. Before considering the question as drawn, we think it right to consider whether, on the facts found in the case, the magistrate could properly hold that the respondent was acting in the execution of her duty. In order to consider this question, it is desirable that we should expose the underlying principles.

The law draws a distinction, in terms more easily understood by philologists than by ordinary citizens, between an assault and a battery. An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force on another person. Both assault and

[1984] 3 All ER 374 at 378

battery are forms of trespass to the person. Another form of trespass to the person is false imprisonment, which is the unlawful imposition of constraint on another’s freedom of movement from a particular place. The requisite mental element is of no relevance in the present case.

We are here concerned primarily with battery. The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery. So Holt CJ held in 1704 that ‘the least touching of another in anger is a battery’: see Cole v Turner 6 Mod Rep 149, 90 ER 958. The breadth of the principle reflects the fundamental nature of the interest so protected; as Blackstone wrote in his Commentaries, ‘the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner’ (see 3 Bl Com 120). The effect is that everybody is protected not only against physical injury but against any form of physical molestation.

But so widely drawn a principle must inevitably be subject to exceptions. For example, children may be subjected to reasonable punishment; people may be subjected to the lawful exercise of the power of arrest; and reasonable force may be used in self-defence or for the prevention of crime. But, apart from these special instances where the control or constraint is lawful, a broader exception has been created to allow for the exigencies of everyday life. Generally speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is (within reason) slapped (see Tuberville v Savage (1669) 1 Mod Rep 3, 86 ER 684). Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life. We observe that, although in the past it has sometimes been stated that a battery is only committed where the action is ‘angry, or revengeful, or rude, or insolent’ (see 1 Hawk PC c 62, s 2), we think that nowadays it is more realistic, and indeed more accurate, to state the broad underlying principle, subject to the broad exception.

Among such forms of conduct, long held to be acceptable, is touching a person for the purpose of engaging his attention, though of course using no greater degree of physical contact than is reasonably necessary in the circumstances for that purpose. So, for example, it was held by the Court of Common Pleas in 1807 that a touch by a constable’s staff on the shoulder of a man who had climbed on a gentleman’s railing to gain a better view of a mad ox, the touch being only to engage the man’s attention, did not amount to a battery (see Wiffin v Kincard (1807) 2 Bos & PNR 471, 127 ER 713; for another example, see Coward v Baddeley (1859) 4 H & N 478, 157 ER 927). But a distinction is drawn between a touch to draw a man’s attention, which is generally acceptable, and a physical restraint, which is not. So we find Parke B observing in Rawlings v Till(1837) 3 M & W 28 at 29, 150 ER 1042, with reference to Wiffin v Kincard, that ‘There the touch was merely to engage a man’s attention, not to put a restraint on his person.’ Furthermore, persistent touching to gain attention in the face of obvious disregard may transcend the norms of acceptable behaviour, and so be outside the exception. We do not say that more than one touch is never permitted; for example, the lost or distressed may surely be permitted a second touch, or possibly even more, on a reluctant or impervious sleeve or shoulder, as may a person who is acting reasonably in the exercise of a duty. In each case, the test must be whether the physical contact so persisted in has in the circumstances gone beyond generally acceptable standards of conduct; and the answer to that question will depend on the facts of the particular case.

The distinction drawn by Parke B in Rawlings v Till is of importance in the case of

[1984] 3 All ER 374 at 379

police officers. Of course, a police officer may subject another to restraint when he lawfully exercises his power of arrest; and he has other statutory powers, for example, his power to stop, search and detain persons under s 66 of the Metropolitan Police Act 1839, with which we are not concerned. But, putting such cases aside, police officers have for present purposes no greater rights than ordinary citizens. It follows that, subject to such cases, physical contact by a police officer with another person may be unlawful as a battery, just as it might be if he was an ordinary member of the public. But a police officer has his rights as a citizen, as well as his duties as a policeman. A police officer may wish to engage a man’s attention, for example if he wishes to question him. If he lays his hand on the man’s sleeve or taps his shoulder for that purpose, he commits no wrong. He may even do so more than once; for he is under a duty to prevent and investigate crime, and so his seeking further, in the exercise of that duty, to engage a man’s attention in order to speak to him may in the circumstances be regarded as acceptable (see Donnelly v Jackman [1970] 1 All ER 987, [1970] 1 WLR 562). But if, taking into account the nature of his duty, his use of physical contact in the face of non-co-operation persists beyond generally acceptable standards of conduct, his action will become unlawful; and if a police officer restrains a man, for example by gripping his arm or his shoulder, then his action will also be unlawful, unless he is lawfully exercising his power of arrest. A police officer has no power to require a man to answer him, though he has the advantage of authority, enhanced as it is by the uniform which the state provides and requires him to wear, in seeking a response to his inquiry. What is not permitted, however, is the unlawful use of force or the unlawful threat (actual or implicit) to use force and, excepting the lawful exercise of his power of arrest, the lawfulness of a police officer’s conduct is judged by the same criteria as are applied to the conduct of any ordinary citizen of this country.

We have been referred by counsel to certain cases directly concerned with charges of assaulting a police officer in the execution of his duty, the crucial question in each case being whether the police officer, by using physical force on the accused in response to which the accused assaulted the police officer, was acting unlawfully and so not acting in the execution of his duty. In Kenlin v Gardiner [1966] 3 All ER931, [1967] 2 QB 510 it was held that action by police officers in catching hold of two schoolboys was performed not in the course of arresting them but for the purpose of detaining them for questioning and so was unlawful (see [1966] 3 All ER 931 at 934, [1967] 2 QB 510 at 519 per Winn LJ). Similarly, in Ludlow v Burgess (1971) 75 Cr App R 227 at 228 per Lord Parker CJ it was held that ‘this was not a mere case of putting a hand on [the defendant’s] shoulder, but it resulted in the detention of [the defendant] against his will’, so that the police officer’s act was ‘unlawful and a serious interference with the citizen’s liberty’ and could not be an act performed by him in the execution of his duty.

In Donnelly v Jackman the police officer wished to question the defendant about an offence which he had cause to believe that the defendant had committed. Repeated requests by the police officer to the defendant to stop and speak to him were ignored. The officer tapped him on the shoulder; he made it plain that he had no intention of stopping to speak to him. The officer persisted and again tapped the defendant on the shoulder, whereupon the defendant turned and struck him with some force. The justices convicted the defendant of assaulting the officer in the execution of his duty, and this court dismissed an appeal from that conviction by way of case stated. The court was satisfied that the officer had not detained the defendant, distinguishing Kenlin v Gardiner as a case where the officers had in fact detained the boys (see [1970] 1 All ER 987 at 989, [1970] 1 WLR 562 at 565). It appears that they must have considered that the justices were entitled to conclude that the action of the officer, in persistently tapping the defendant on the shoulder, did not in the circumstances of the case exceed the bounds of acceptable conduct, despite the fact that the defendant had made it clear that he did not intend to respond to the officer’s request to stop and speak to him; we cannot help feeling that this is an extreme case.

Finally, in Bentley v Brudzinski (1982) 75 Cr App R 217 it was found by the justices that

[1984] 3 All ER 374 at 380

the police officer, having caught up with the defendant, said, ‘Just a minute’; then, not in any hostile way, but merely to attract attention, he placed his right hand on the defendant’s left shoulder. The defendant then swore at the police officer and punched him in the face; and a struggle ensued. The justices considered that the act of the police officer amounted to an unlawful attempt to stop and detain the defendant, and so dismissed an information against the defendant alleging that he assaulted the police officer in the execution of his duty. This court dismissed the prosecutor’s appeal by way of case stated; it appears that they considered that, having regard to all the facts of the case as found by the justices, they were entitled to hold that the police officer’s act was performed not merely to engage the attention of the defendant, but as part of a course of conduct in which the officer was attempting unlawfully to detain the defendant.

We now return to the facts of the present case. Before us, counsel for the respondent police officer sought to justify her conduct, first by submitting that, since the practice of cautioning women found loitering or soliciting in public places for the purposes of prostitution is recognised by s 2 of the 1959 Act, therefore it is implicit in the statute that police officers have a power to caution, and for that purpose they must have the power to stop and detain women in order to find out their names and addresses and, if appropriate, caution them. This submission, which accords with the opinion expressed by the magistrate, we are unable to accept. The fact that the statute recognises the practice of cautioning by providing a review procedure does not, in our judgment, carry with it an implication that police officers have the power to stop and detain women for the purpose of implementing the system of cautioning. If it had been intended to confer any such power on police officers that power could and should, in our judgment, have been expressly conferred by the statute.

Next, counsel for the respondent submitted that the purpose of the police officer was simply to carry out the cautioning procedure and that, having regard to her purpose, her action could not be regarded as unlawful. Again, we cannot accept that submission. If the physical contact went beyond what is allowed by law, the mere fact that the police officer has the laudable intention of carrying out the cautioning procedure in accordance with established practice cannot, we think, have the effect of rendering her action lawful. Finally, counsel for the respondent submitted that the question whether the respondent was or was not acting in the execution of her duty was a question of fact for the magistrate to decide; and that he was entitled, on the facts found by him, to conclude that the respondent had been acting lawfully. We cannot agree. The fact is that the respondent took hold of the appellant by the left arm to restrain her. In so acting, she was not proceeding to arrest the appellant; and since her action went beyond the generally acceptable conduct of touching a person to engage his or her attention, it must follow, in our judgment, that her action constituted a battery on the appellant, and was therefore unlawful. It follows that the appellant’s appeal must be allowed, and her conviction quashed.

We turn finally to the question posed by the magistrate for our consideration. As we have already observed, this question is in wide general terms. Furthermore, the word ‘detaining’ can be used in more than one sense. For example, it is a commonplace of ordinary life that one person may request another to stop and speak to him; if the latter complies with the request, he may be said to do so willingly or unwillingly, and in either event the first person may be said to be ‘stopping and detaining’ the latter. There is nothing unlawful in such an act. If a police officer so ‘stops and detains’ another person, he in our opinion commits no unlawful act, despite the fact that his uniform may give his request a certain authority and so render it more likely to be complied with. But if a police officer, not exercising his power of arrest, nevertheless reinforces his request with the actual use of force, or with the threat (actual or implicit) to use force if the other person does not comply, then his act in thereby detaining the other person will be unlawful. In the former event, his action will constitute a battery; in the latter event, detention of the other person will amount to false imprisonment. Whether the action of a police officer in any particular case is to be regarded as lawful or unlawful must be a question to be decided on the facts of the case.

[1984] 3 All ER 374 at 381

Having regard to the facts of the present case, we have no doubt that the magistrate framed his question having in mind the act of the respondent in taking hold of the appellant’s arm to restrain her, which we have held to be a battery and so unlawful. But, having regard to the distinctions we have drawn, we consider the question itself to be so widely drafted as not to be susceptible of a simple answer. We therefore prefer not to answer it; and we shall exercise our power to amend the case by adding the following further question which arises on the facts of the case, viz whether, on the facts found by the magistrate, the respondent was acting in the course of her duty when she detained the appellant. That question we shall, for the reasons we have already given, answer in the negative.

Solicitors: Sears Blok (for the appellant); D M O’Shea (for the respondent).

N P Metcalfe Esq Barrister.

[Police Power] Donnelly v Jackman [1970] 1 All ER 987

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The appellant was walking along the pavement when a police officer in uniform came up to him with a view to making enquiries about an offence which the officer had cause to believe that the appellant might have committed. The appellant ignored the officer’s repeated requests to stop and speak to him. At one stage the officer tapped the appellant on the shoulder, and shortly after the appellant tapped the officer on the chest. It became apparent that the appellant had no intention of stopping. The officer then again touched the appellant on the shoulder with the intention of stopping him (but neither then nor previously had the officer any intention to arrest the appellant), whereupon the appellant struck the officer with some force. The appellant was charged with and convicted of assaulting the officer in the execution of his duty. On appeal,

Held – The touching of the appellant’s shoulder was a trivial interference with his liberty and did not amount to a course of conduct sufficient to be outside the course of the officer’s duties; accordingly the appeal would be dismissed (see p 989 f to h, post).

Dicta of Ashworth J in R v Waterfield, R v Lynn (1963) 3 All ER at 661 and of Lord Parker CJ in Rice v Connolly [1966] 2 All ER at 651 applied.

Davis v Lisle [1936] 2 All ER 213 and Kenlin v Gardiner [1966] 3 All ER 931 distinguished.

Cases referred to in judgment

Davis v Lisle [1936] 2 All ER 213, [1936] 2 KB 434, 105 LJKB 593, 155 LT 23, 100 JP 280, 15 Digest (Repl) 852, 8201.

Kenlin v Gardiner [1966] 3 All ER 931, [1967] 2 QB 510, [1967] 2 WLR 129, Digest (Cont Vol B) 191, 8225a.

Rice v Connolly [1966] 2 All ER 649, [1966] 2 QB 414, [1966] 3 WLR 17, 130 JP 322, Digest (Cont Vol B) 191, 8219b.

R v Waterfield, R v Lynn [1963] 3 All ER 659, [1964] 1 QB 164, [1963] 3 WLR 946, 128 JP 48, 48 Cr App Rep 42, Digest (Cont Vol A) 416, 8201a.

Case stated

This was a case stated by justices for the county of Surrey in respect of their adjudication as a magistrates’ court sitting at Farnham on 12 June 1969. The respondent, Maurice Jackman, preferred an information against the appellant, Michael James Donnelly, charging him with assaulting Edward Roy Grimmett, a police officer, whilst acting in the execution of his duty. The facts are set out in the judgment of Talbot J.

C P B Purchas for the appellant.

J M Wright for the respondent.

27 January 1970. The following judgments were delivered.

The facts found by the justices were these; at about 11.15 am on Saturday, 5 April, the appellant was lawfully walking along a pavement when Pc Roy Grimmett in uniform came up to him for the purposes of making enquiries about an offence which the officer had cause to believe the appellant had committed or might have committed. The officer spoke to the appellant asking him if he could have a word with him. The appellant ignored that request, and continued to walk along the pavement away from the officer. The officer followed close behind him, and apparently repeatedly asked him to stop and speak to him. At one stage the officer tapped the appellant on the shoulder, and apparently shortly after that the appellant turned round and in turn tapped the officer on the chest saying ‘Now we are even, copper’.

It became apparent to the officer, so the finding proceeds, that the appellant had no intention of stopping to speak to him. The officer then again touched the appellant on the shoulder with the intention of stopping him, whereupon the appellant then turned round and struck the officer with some force. The finding is that the officer did not touch the appellant for the purpose of making any formal arrest or charge, but solely for the purpose of speaking to him. Following the striking of the officer, the appellant was arrested for assaulting the officer in the execution of his duty and taken to the police station. The justices convicted the appellant, finding the summons proved.

The principal question it seems to me is whether the officer was acting in the execution of his duty, and a secondary question, whether anything he did caused him to cease to be acting in the execution of his duty. When considering what the duties of the officer were, I do not think that I can do better than cite the words of Lord Parker CJ in Rice v Connolly ([1966] 2 All ER 649 at 651, [1966] 2 QB 414 at 419), when he said:

‘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, for preventing crime or for protecting property from criminal injury.’

Furthermore, in considering the problem whether the officer went outside the ambit of his duties so as to be ceasing to be acting therein, I would refer to the words of Ashworth J taken from R v Waterfield, R v Lynn ([1963] 3 All ER 659 at 661, [1964] 1 QB 164 at 170), and this is the way it was put:

‘In the judgment of this court it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person’s liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.’

The main point taken by counsel for the appellant is that the result of what the officer did was such that he was not acting in the execution of his duty. He had, argued counsel, no right to stop the appellant or any other person other than by arrest.

[1970] 1 All ER 987 at 989

In support of his argument he cited several authorities in which officers, whilst it is alleged acting in the execution of their duties, had been assaulted, in which the court had found that in fact that was not so, they were not acting in the execution of their duties. The first one was Davis v Lisle. That was a case where a police officer, taking these facts from the headnote, believing that an offence had been committed by the servant of the appellant of causing an obstruction on the highway with a motor lorry, was making enquiries, and he went to the appellant’s garage and he went into the garage. The appellant asked him to leave and as a result of not leaving he was assaulted. It was held that even if the respondent police officer had a right to go into the garage and make enquiries, he became a trespasser after he had been told to leave, and henceforward was not acting in the execution of his duty.

That seems to me a very different case from the present one which we are considering. There the police officer had gone so far as to make himself a trespasser. The other authority quoted by counsel for the appellant was Kenlin v Gardiner. There two schoolboys apparently were visiting a number of premises and caused certain police officers to be suspicious; the police officers therefore went up to make enquiries, they said that they were police officers and asked the boys what they were calling on these houses for. Apparently the boys were acting perfectly innocently and had a perfectly lawful reason for what they were doing. However, the upshot of it was that they became alarmed and the police officers seized them by the arm, with the result that these boys retaliated and assaulted the police officers. There again in my judgment the facts of that case are vastly different from those that we are considering because there each officer had taken hold of one of the boys and had in fact detained him.

Turning to the facts of this matter, it is not very clear what precisely the justices meant or found when they said that the officer touched the appellant on the shoulder, but whatever it was that they really did mean, it seems clear to me that they must have felt that it was a minimal matter by the way in which they treated this matter and the result of the case. When one considers the problem: was this officer acting in the course of his duty, in my view one ought to bear in mind that it is not every trivial interference with a citizen’s liberty that amounts to a course of conduct sufficient to take the officer out of the course of his duties. In my judgment the facts that the justices found in this case do not justify the view that the officer was not acting in the execution of his duty when he went up to the appellant and wanted to speak to him. Therefore the assault was rightly found to be an assault on the officer whilst acting in the execution of his duties, and I would dismiss this appeal.

I agree.

Solicitors: Vizard, Oldham, Crowder & Cash agents for Mellersh & Lovelace, Godalming (for the appellant); McNamara Ryan & Co, Chertsey (for the respondent).

Rosalie Long Barrister.

[Police Power] Kenlin v Gardiner [1967] 2 QB 510

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Crime – Assault – Police – Self-defence – Detention by police officers to question – Decision to arrest not made – Genuine belief that officers not policemen – Assault on officers in ensuing struggle – Whether technical assault by police officers – Whether justified – Whether self-defence justification for assault on police officers – Police Act, 1964 (c. 48), s. 51 (1).

Crime – Self-defence – Assault by police – Right of self-defence.

Two schoolboys, aged 14, in fact innocently visiting a number of premises for the purpose of reminding certain members of their school rugger XV of a forthcoming match, aroused the suspicions of police officers on duty in plain clothes, who approached the boys. One of the police officers produced his warrant card and said:”We are police officers, here is my warrant card. What are you calling at houses for?” but the boys did not read, nor comprehend the nature of, the warrant card, and did not believe them to be genuine police officers. One boy made as if to run away, and one of the police constables caught hold of his arm, said: “Now look, son, we are police officers, what have you been up to?” and cautioned him. The boy started to struggle violently, punching and kicking the officer. The other officer came to his assistance and the boy asked for his warrant card. That was not produced owing to the struggle.

____________

[Reported by GRAHAM GARNER, ESQ., Barrister-at-Law.]

[1967] 2 Q.B. 510 Page 511

The other boy started to run away and one of the police officers let go of the first boy and grasped him, when the boy struck the officer. Each boy was charged with assaulting a police constable in the execution of his duty, contrary to section 51 (1) of the Police Act, 1964.1 The justices found that the officers were at all times acting properly in the execution of their duty, but that the boys did not accept that they were police officers and were genuinely frightened when they struggled. They concluded that the violence shown to the police officers amounted to technical assault and convicted the boys, granting each an absolute discharge.

On appeal:-

Held, that the justification of self-defence was available to a charge of assault under section 51 (1) of the Police Act, 1964, as in the case of any other assault, provided that the prior assault by the police officer was not justified; that the prior assault by the police constables, in taking hold of an arm of each of the boys, was not justified in that it was not done as an integral step in the process of arresting the boys but in order to secure an opportunity, by detaining them, to question them so as to satisfy the officers whether or not it would be right in the circumstances to arrest them; and that, accordingly, there being a technical unjustified assault by the police officers, the plea of self defence was available to the boys and their conviction would be quashed.

Per Winn L.J. Knowledge that the man attacked is a police officer is not a necessary ingredient of the offence under section 51, but a genuine mistake of fact as to his character, e.g., a genuine and reasonable belief that he was a thug and not a police officer, would be material in judging the reasonableness of the resistance exerted and the degree of force falling within the justification of self-defence (post, pp. 519G – 520B).

CASE STATED by Hackney juvenile court justices.

On October 22, 1965, informations were laid by two police constables, Holga Gardiner and William Peters, against the defendants, Ian Kenlin and David sowoolu, that the defendant Kenlin, on October 22, 1965, at Maury Road, N.16, assaulted Police Constables Gardiner and Peters, and that Sowoolu on the same date and at the same place assaulted Police Constable Gardiner, in the execution of their duty, contrary to section 51 (1) of the Police Act, 1964.

The following facts were found by the justices: At about 1 p.m. on Thursday, October 22, 1965, the two defendants, who were both schoolboys aged 14, were engaged in visiting a number

1 Police Act, 1964, s. 51 (1): “Any person who assaults a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty of an offence …”

[1967] 2 Q.B. 510 Page 512

of premises in the Stoke Newington area of London for the purpose of reminding certain members of their school rugby XV of a forthcoming match. The two police constables, who were on duty in plain clothes, saw the defendants as they knocked at the door of a house facing Stoke Newington Common. Having become genuinely but erroneously suspicious of the two defendants, the police constables followed them into Maury Road, where they saw the first defendant, Kenlin, knock at the door of No. 77 whilst the second defendant, Sowoolu, remained at the gateway of the house. Kenlin in fact spoke to a Miss Edwards at No. 77 but from the position that the officers were keeping observation they were unable to see that.

After the two defendants had left that address and were walking along Maury Road together and away from No. 77, the police officers went up to them. Police Constable Gardiner produced his warrant card to them and said to them: “We are police officers, here is my warrant card. What are you calling at houses for?” Neither of the defendants was able to readwhat appeared on the warrant card nor to comprehend the nature of the document. Further, both defendants were alarmed at being accosted in that way by strangers and, although both the police constables were dressed respectably, the defendants did not think that they were, in fact, genuine police officers. Neither defendant made any reply and Kenlin made as if to run away. Immediately Police Constable Gardiner caught hold of Kenlin’s left arm and said: “Now look, son, we are police officers, what have you been up to?” and then cautioned him. Kenlin immediately started to struggle violently and punched Police Constable Gardiner several times with his only free arm, namely, the right one, about the chest and body and kicked Police Constable Gardiner about the legs in an effort to free himself.

The defendant Sowoolu was told by Police Constable Peters to stand against the hedge and not to run away. Police Constable Peters then left Sowoolu and went to the assistance of Police Constable Gardiner. Kenlin called upon Peters to produce his warrant card (as he had not done so) but owing to the struggles of Kenlin, Peters did not do that and, in fact, never produced his warrant card to either defendant. The defendant Sowoolu, seeing the struggle between Kenlin and the two police constables, took fright and started to run away. That was seen by Police Constable Gardiner, who then let go of Kenlin, chased after Sowoolu and caught hold of Sowoolu’s right arm. Sowoolu then turned

[1967] 2 Q.B. 510 Page 513

towards Police Constable Gardiner and struck the officer with his free arm and also attempted to kick the officer, who lost his grip upon the defendant. Sowoolu then made off and went straight home, where he was later arrested. In the meantime, the defendant Kenlin had been struggling with Police Constable Peters. In the course of that struggle, he aimed a blow at the police constable but did not strike him, wriggled out of the officer’s grasp and ran away. Police Constable Peters pursued Kenlin and with the assistance of a passer-by driving a motor car, namely, a Mr. Howes, finally succeeded in catching Kenlin in Evering Road. After a struggle during which Kenlin shouted: “You’re not police officers” and “Don’t let them take me away,” Police Constable Peters and Mr. Howes succeeded in placing Kenlin into the motor car. There he continued to struggle until it became clear that they were, in fact, driving to a police station and, accordingly, Kenlin then appreciated that the two police constables were truly police officers and gave no further trouble.

In that episode, neither of the police constables received any injuries and out of the two defendants only Kenlin suffered a slight reddening below his right eye.

It was contended on behalf of the defendants that each of them had acted under a genuine and honest belief, reasonably held, that the constables were not police officers but were strangers committing a crime against the defendants, and, therefore, the defendants were entitled in law to use such force as was necessary to defend themselves.

The justices found that the officers had reasonable grounds for suspecting, and genuinely believed, that the defendants might be loitering with intent to commit a felony and were justified in approaching them, and that nothing that the defendants said or did thereafter acted in any way to allay their suspicions. They, accordingly, found that the officers were at all times acting properly in the execution of their duty; and that the defendants did not accept that the police constables were police officers and were genuinely frightened when they struggled.

They concluded that the violence shown to the police officers amounted in law to technical assaults only, convicted the appellants and granted each of them an absolute discharge on each of the informations.

The defendants appealed and the questions for the opinion of the High Court were: (1) Was the defence of “self-defence” open to a defendant in answer to a charge laid under section 51 (1)

[1967] 2 Q.B. 510 Page 514

of the Police Act, 1964? (2) Was “mens rea” an element required in proving an “assault” within the meaning of section 51 (1) of the Police Act, 1964? (3) Could a genuine mistake of fact alone, or considered together with the defence of “self defence,” amount to a defence to a charge laid under section 51 (1) of the Police Act, 1964? (4) What distinction was to be drawn between the word “assault” in section 51 (1) of the Police Act, 1964, and the word “resists” in section 51 (3) of the same Act?

J. W. Rogers for the appellants. This case falls between the basic liberties of the individual and the anxiety of the law to protect its officers. No police constable has any right to detain a person forcibly for an enquiry. Where an assault on a police constable is alleged under section 51 (1) of the Police Act, 1964, the word “assault” bears its ordinary meaning in law and has no special construction. That being so, the normal defences open to any person to a charge of assault are open in an allegation under section 51, i.e., self defence, or, here, that the personalleged to have done the assault was acting under such a fundamental mistake of fact that it negatived any animus or mens rea. If it be a requirement of the law that a mistake of fact be reasonable in order to provide excuse for the assault, then the fact that a mistake is made should reduce an assault to mere resistance: see section 51 (3).

The definition of assault set out in Archbold, 35th edn. (1962), p. 1046, para. 2631, is “an attempt to commit a forceable crime against the person of another.” There must be an intention to assault. If a complete stranger grabbed me as I stepped off the pavement before a bus which I had not seen, and I mistook his motive and used force to make him let go, this would be a mistake of fact and not blameworthy.

[WINN L.J. This all goes to justification. In the bus case you would have consented to the force had you known about the bus.]

The officers were concerned with a breach of the Vagrancy Acts. The appellants were not in the categories of idle or disorderly persons, or reputed thieves, which leaves suspected persons. And the boys never came into the category as far as the police were concerned. The officers had been put on inquiry, nothing more. They made an initial inquiry and never identified themselves to the appellants as neither read what was on the warrant card. Then there was a complete clash of misunderstandings which caused the young appellant Kenlin to start

[1967] 2 Q.B. 510 Page 515

to take flight. The first officer seized Kenlin. His reason was to ask the mere question “Now look son, we’re police officers. What have you been up to?” The fact that a person takes flight might deepen an officer’s suspicions and lead to arrest. But here the officer just grabbed the boy and questioned him. If this was the finding of fact, then it was impossible to argue that the police constable could equally well have said “I suspect you of being up to no good, and intend to arrest you as a suspected person” if he had by then decided to arrest, see Christie v. Leachinsky.2 It cannot be suggested that any different reason applied to the attempt by the same officer to seize Sowoolu.

The officer’s powers of arrest stem either from (1) The Vagrancy Act, 1824, s. 6, (2) the Metropolitan Police Act, 1839, s. 64, or (3) section 66 of the same Act. In section 6 the operative words are “to apprehend any person found offending” with the qualification that if the officer reasonably holds an honest belief that a person is offending, then that is justification in apprehending.

[LORD PARKER C.J. Where does one find that there is power to detain short of arrest?]

There is no direct authority on the point: see Rice v. Connolly3 which is as near as possible, and suggests there is none.

[LORD PARKER C.J. The whole point is whether the men were acting in the execution of their duty? If not, was the assault by the boys justified on the grounds of self defence?]

Michael Worsley for the respondents. (1) The officers were acting in the course of their duty. (2) To act in self defence involves acting on reasonably held grounds, and there was no finding of fact that the mistake was reasonable. There is a power to intervene to prevent felony. This is not to be found in current textbooks, but is in Hale’s Pleas of the Crown.

[LORD PARKER C.J. But on the facts the question “what have you been doing?” related to suspicions in the past and not in the future.]

One must take what happened as a whole. The officers have the power of arrest having regard to what they have already seen.

[LORD PARKER C.J. That cannot be right. If there is an arrest, then the law comes into force. Can the officers say “we are not going to arrest you, but just going to hold you?”]

See Rice v. Connolly3 and 2 Hale’s Pleas of the Crown, 1800

2 [1947] A.C. 573; 63 T.L.R. 231; [1947] 1 All E.R. 567, H.L.
3 [1966] 2 Q.B. 414; [1966] 3 W.L.R. 17; [1966] 2 All E.R. 649, D.C.

[1967] 2 Q.B. 510 Page 516

ed., p. 94 et seq. A constable could arrest where a felony had not yet been committed but was in danger of being committed. This book was an authority, as on Sir Matthew Hale’s death Parliament ordered it to be published and printed: see Rex v. Casement.4

[WINN L.J. Whatever the power to arrest or seize a man may be, since he was not arrested, what has Hale to do with it? The officers were using some force not part of the process of arresting. Where is the finding that they intended to arrest?]

One cannot doubt that arrest would have followed if no satisfactory explanation had been given. If there was a right of arrest, the fact that the officer asked a question which he need not have asked, and asked it in favour of the defence in case the boy had an explanation which might remove a reasonable suspicion, cannot alter the officer’s position to his detriment.

[WINN L.J. But he seized the boy before the explanation.]

Anyway this cannot justify the assault by the boy.

[LORD PARKER C.J. If so, this is a matter for the magistrates. The case will have to be sent back.]

I am not instructed to ask that it should be sent back. The Crown is not disposed to oppose the appeal on the merits, only on the principle. If a person acts under a mistake of fact that a person is not a police constable, and strikes the constable, that mistaken impression must be reasonably held: see Reg. v. Reynhourdt5 and Reg. v. Mark.6

WINN L.J. This is an appeal upon a case stated by two justices for the Metropolitan Area Inner London Juvenile Courts, who were sitting in Hackney as a juvenile court on November 22, 1965, when two boys of 14 were charged before them with assaulting two police officers in the execution of their duty and were convicted. This is a most unfortunate case which really might better have died down in the teacup in which the storm first began to arise.

These two police officers were acting in a perfectly proper way, apart from the merest technicality to which it will be necessary subsequently to refer. The boys were perfectly innocent and engaged in no improper behaviour of any kind. Mr. Rogers used an expression when addressing the court, which with his permission I will adopt: the whole thing was a clash of misunderstandings; the police officers misunderstood what the boys were

4 [1917] 1 K.B. 98, 140; 32 T.L.R. 601, C.C.A.
5 (1962) 107 C.L.R. 381.
6 [1961] Crim.L.R. 173.

[1967] 2 Q.B. 510 Page 517

doing, and the boys misunderstood what the police officers, as in fact they were, were doing to them. These police officers were in plain clothes, and in all probability not in their best plain clothes. As the justices have found, the boys thought that, so far from being police officers, these men were thugs.

It seems that in the middle of the day on a date in October, 1965, these two lads were going to a number of houses in the Stoke Newington area in order to remind members of their school rugger XV of the date or place at which a forthcoming match was to be played, a perfectly innocent errand, and they were going together from house to house knocking on the doors. The police officers saw them engaged in that manner, and, as the justices thought, became genuinely but erroneously suspicious of the two boys. Just what they suspected is not expressly found in the case; maybe they thought they were going from house to house begging; it may be they thought they were going from house to house looking for a door or window which was not secure with a view to breaking in and committing felonies in the house. At any rate, one of the officers went up to the two boys, properly acting in a reasonable and correct way, produced his warrant card and showed it to them and said: “We are police officers, here is my warrant card. What are you calling at houses for?” Unfortunately the warrant card in its talc case, one supposes, could not be readily read; whether these boys did not read quickly, whether they were frightened, or what was the explanation, the fact is that they did not appreciate from the displaying to them of the warrant card that these men were police officers, and they were frightened by being so accosted. Neither of them said anything; one of them made away. He tried to run away, whereupon one of the police officers, acting in a sensible, normal and natural way – but unfortunately, here comes the technical difficulty – caught hold of him by the left arm, using no violence to him, but merely seeking to hold him from escape, and said: “Now look, son, we are police officers, what have you been up to”; then he cautioned him. Immediately the boy began to struggle violently and punched the officer several times with one of his arms, in fact the only free one, the right arm, about the chest and body andkicked him about the legs. The other lad was told by the other officer to stand against the hedge and not to run away; the first boy, who was, one might say, a stalwart for his rights as a citizen, demanded that his warrant card should be produced by the second officer. He really could not get at that

[1967] 2 Q.B. 510 Page 518

because of the struggle, and so the other boy took fright also and started to run away; but he was chased and caught by the right arm, he then turned and struck that officer with his free arm and tried to kick him; then he went off and ran away home, either to his mother, or more probably to his father to tell him how bravely he had conducted himself. So the strusggles went on until one of these boys with the help of a passer-by who happened to come along with a motor car, was put into the car; he went on shouting: “You’re not police officers. Don’t let them take me away”; and he went on in that fashion until he realised that the car was bound for the police station, then he calmed down and everythingwas quiet. There was no more trouble until they came before the magistrates, who came to the conclusion that the violence shown to the police officers amounted in law to technical assaults – only technical – so after conviction they very sensibly granted each of the boys an absolute discharge on each of the informations. Now this case comes before this court with – I say this deliberately though without any intention to be insulting to either counsel – some tendency to put it forward as a cause célŠbre, a state trial. In my own view it is nothing of the kind; it is quite a simple and normal case where misunderstandings led to an unfortunate consequence which need not have involved any prosecution.

The boys undoubtedly assaulted the police officers: there cannot be any doubt about that, they struck them and kicked them; but the question is whether that was a justifiable or unjustified assault; and that again, as Mr. Rogers agreed, depends entirely on whether the answer of self-defence was available to these two boys in the particular circumstances. Of course, in the case of a charge of assault under section 51 (1) of the Police Act, 1964, as in the case of any charge of assault, the defence or justification – I prefer to call it a justification, because it must always be borne in mind that it is for the prosecution to exclude justification and not for the defendant to establish it – the justification of self-defence is available just as it is in the case of any other assault. That is subject to this, that if the self-defence, in this case self-defence by the two boys against a prior assault such as had been committed, in a technical sense, by the police officers taking hold of an arm of each of these boys, was self-defence against an assault which was justified in law, as, for instance, a lawful arrest, then in law self-defence cannot afford justification for assault in resistance to justified assault by police officers. So

[1967] 2 Q.B. 510 Page 519

one comes back to the question in the end, in the ultimate analysis: was this officer entitled in law to take hold of the first boy by the arm – of course the same situation arises with the other officer in regard to the second boy a little later – justified in committing that technical assault by the exercise of any power which he as a police constable in the precise circumstances prevailing at that exact moment possessed?

I regret, really, that I feel myself compelled to say that the answer to that question must be in the negative. This officer might or might not in the particular circumstances have possessed a power to arrest these boys. I leave that question open, saying no more than that I feel some doubt whether he would have had a power of arrest: but on the assumption that he had a power to arrest, it is to my mind perfectly plain that neither of these officers purported to arrest either of these boys. What was done was not done as an integral step in the process of arresting, but was done in order to secure an opportunity, by detaining the boys from escape, to put to them or to either of them the question which was regarded as the test question to satisfy the officers whether or not it would be right in the circumstances, and having regard to the answer obtained from that question, if any, to arrest them.

I regret to say that I think there was a technical assault by the police officer. From which it follows that the justification of self-defence exerted or exercised by these two boys is not negatived by any justifiable character of the initial assault. It is plain in my own view that it was within the province of the justices to decide whether there was any excess in exercising privilege of self-defence. The court is not asked to send back this case to the justices – that would have given it a quite inflated importance – for them to decide just what was the ambit of the self-defence permissible in the circumstances, what were the reasonable or unreasonable features of the conduct of the boys in seeking to defend themselves. It suffices to say that the self defence justification was available to these boys, and that it is not shown on the facts found by the justices that there was an excess of that liberty.

The justices have asked certain questions, as my Lord said, rather in the nature of an examination paper. It is not necessary to give any detailed answers to them, but in case they themselves want to know the answer, since they have consulted the court, to question (1) the answer is: yes as to any assault unless the assault resisted was itself justifiable; No. (2): yes, but knowledge

[1967] 2 Q.B. 510 Page 520

that the person assaulted was an officer in the execution of his duty does not have to be proved; No. (3): knowledge that the man attacked is a police officer is unnecessary, but a genuine mistake of fact as to the character of the person concerned, e.g. genuine and reasonable belief that he was a thug and not a police officer, would be highly material in judging the scope of reasonableness of the resistance exerted and the degree of force falling within the liberty or justification of self-defence. As to No. (4), it really does not need an answer: what is the difference between assault and “resists”? The two words have quite different meanings. “Resists” does not necessarily involve an assault.

For these reasons I think that this appeal should be allowed and this conviction quashed.

WIDGERY J. I agree.

LORD PARKER C.J. I also agree and I would only add that I think it is most unfortunate that these proceedings were ever brought, and saw the light of day; at the end the justices found that the offences committed by the boys amounted to technical assault, and as my Lord has just said, the action of the police amounted to technical assault.

Solicitors: Prothero & Prothero; Solicitor, Metropolitan Police.

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Monthly Archives: October 2018

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Cases referred to in judgment

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