Doctor finds the right remedy

A bitter eight year battle against West Yorkshire Police has ended in victory for a Bradford doctor and medico-legal practitioner, Abdul Rashid

In a judgment handed down by Mr Justice Lavender in Leeds High Court on Friday 25th September, 2020 it was held that the police had unlawfully arrested Dr Rashid at his home in March, 2012 in a dawn raid involving 16 officers.

He was suspected of involvement of what became known as ‘crash for cash’ insurance claims. No allegation of that nature, or indeed any other criminal allegation, was ever put to him in over 30 hours of police station interviews. The questioning by detectives was described as ‘immature and largely pointless’.

A civil claim followed, alleging wrongful arrest, trespass and false imprisonment and was eventually heard at Bradford Law Courts in September, 2019. Dr Rashid was represented by Ian Pennock of counsel and local solicitor, Simon Blakeley. Counsel for WYP, Olivia Checa-Dover and Daniel Penman were instructed by Alison Walker, Deputy Head of Legal Services within the police force (full day by day trial report can be read here).

After a bitterly fought, ten day liability hearing, the claim was peremptorily dismissed by Mr Recorder Nolan QC, who found that the police had both reasonable grounds to arrest Dr Rashid and there was a necessity to do so, rather than ask him to attend for voluntary interview. The judge awarded costs of around £130,000 against Dr Rashid following the hand down of the judgment.

At the time, both the doctor and his legal team were perplexed over the judge’s findings and felt strongly it did not reflect either the evidence or legal argument (read more here). It is also true to say that they were dismayed at what had been allowed to pass for disclosure, wherein it seemed that the materials had been weeded by the police to take out almost every document that would either assist the claimant or expose what was plainly a ‘cover-up’ over a ‘bad apple’ officer who effected the arrest (read here). 

The demeanour of Ben Nolan QC, throughout the trial, was also a cause for concern and may yet be the subject of a complaint to the Judicial Complaints Investigation Office.

An appeal for permission to appeal was lodged with the High Court the following month and was granted ‘on the papers’ in December, 2019 by the same judge who, ultimately, gave judgment.

Dr Rashid’s appeal focused on the adverse findings by the judge in the trial on these central issues:

 – Whether the arresting officer, Detective Constable Mark Lunn, and his fellow officers (a) honestly, and (b) reasonably believed:

(i) that there were reasonable grounds for suspecting that an offence had been committed by the Claimant; and

(ii) that it was necessary to arrest the Claimant to allow the prompt and effective investigation of the offence

 – Whether the search warrants had been obtained lawfully and by due process.

 – Whether the Claimant would have been lawfully arrested by another officer, if he had not been arrested by DC Lunn. This was referred to as the “Lumba Parker issue” at trial, by reference to Parker v Chief Constable of Essex Police [2019] 1 W.L.R. 2238. Parker being better known as the former television celebrity, Michael Barrymore. The 2011 Supreme Court case of Walumba Lumba versus the Home Secretary  is now an oft-cited legal authority on the tort of false imprisonment (read more here).

 – Whether the ex turpi causa doctrine applied. Otherwise known as the defence of illegality, deployed by law enforcement agencies when an arrest has been otherwise deemed as unlawful.

The thrust of the appeal was, obviously, that the primary conclusion of the Recorder, of the arrest being lawful, was wrong. The adequacy of the Recorder’s reasoning was also challenged.

The full appeal hearing took place remotely, via Skype Business, in early May, 2020. In spite of one or two minor technical hitches it was comfortably completed within the estimated time of one day (read report here).

The delay in handing down the judgment is believed to be, at least in part, due to Mr Justice Lavender’s wider responsibilities as a Presiding Judge of the North Eastern Circuit and the heavy administrative burden that comes with such a role. Especially in the time of a national emergency, such as CoVID-19.

The key points from the the judgment, can be summarised thus:

Reasonable grounds for arrest: The judge upheld Recorder Nolan’s finding that the arresting officer, and others in the group of officers involved in the planning of the operation, did have reasonable suspicion of Dr Rashid’s involvement in the crash for cash conspiracy, although the judge noted that the bar is set low for such suspicion.

Necessity for arrest: The judge found that the police not exploring the option of voluntary interview was fatal to their case. The use of the power of arrest must be fully justified and officers exercising the power should consider if the necessary objectives can be met by other, less obtrusive means. Here the bar is set quite high. In Dr Rashid’s case the police did not even consider an alternative to arrest. The justification for that arrest, prior to it being effected, was to seize his mobile phone, even though the officers agreed that the suspect, being an otherwise respectable, professional man would co-operate. In the event, the mobile phone was picked up by officers from his bedside table. He was in his night attire at that time, a situation reasonable foreseeable by the police given the early hour.

It was also held that the arresting officer is required to record in his pocket book or by other methods used for recording information: (i) the nature and circumstances of the offence leading to the arrest (ii)  the reason or reasons why arrest was necessary (iii) the giving of the caution (iii) anything said by the person at the time of arrest.

The police never made DC Lunn’s pocket note book available, so were unable to make out their case for the arrest being lawful in this regard, either.

In his witness evidence, almost entirely unconvincing throughout, Detective Inspector Mark Taylor told the court (i) that the time constraints of voluntary attendance may not have been sufficient; (ii) there was a need to secure information contained, in particular, on Dr Rashid’s phone; (iii) there was a need to obtain evidence seized on arrest for purpose of later interviews. 

In her closing submissions, Miss Checa-Dover has posited that ‘there was an obvious risk of suspects tampering with evidence or tipping off co-conspirators’. Ignoring the fact that almost all of them had been arrested, interviewed and bailed over preceding five months, and that DI Taylor during three days in the witness box had not raised this point. A detail picked up by Mr Justice Lavender.

The judge dismissed all three of DI Taylor’s reasons: The first one because there is no 24 hour limit on voluntary interview ( as a former custody sergeant a point with which the detective should have been familiar). The other two reasons did not suffice because the police said they had search warrants (although never produced at court) and, therefore, the only evidence that would have made the arrest necessary would have to be concealed on Dr Rashid’s person.

Additionally, given that he had been expected to be cooperative, according to DI Taylor’s own evidence, an arrest could not reasonably be thought necessary unless he had refused to cooperate (or given that appearance).

Lumba Parker argument: The judge, having concluded that there were no reasonable grounds for believing that it was necessary to arrest Dr Rashid, found that it cannot be said by the police that, if DC Lunn had not arrested him, another officer would have arrested him lawfully.

Also, on the same basis, there is no scope for the application of the Ex Turpi Causa doctrine, since the conduct on the part of Dr Rashid referred to in final paragraph of the Recorder’s judgment merely provided the occasion for his arrest, but did not cause him to be arrested unlawfully.

Mr Justice Lavender, accordingly allowed the appeal. The judgment of  Recorder Nolan is quashed and replaced by judgment, in favour of Dr Rashid, for damages to be assessed for his unlawful arrest.

If the police and Dr Rashid are unable to agree upon damages, a trial to determine causation and quantum may follow. In the meantime, a hearing before Mr Justice Lavender has been listed for 16th October, 2020 to deal with matters consequential to the judgment, including costs and any prospective permission to appeal application by either side (read more here).

Dr Rashid said after the hearing:

“The past eight years have been incredibly stressful for both me and my family in putting right all the wrongs caused by the unlawful arrest, which the High Court has now ruled to have been completely unnecessary. Not least, succeeding at judicial review in 2012, following a suspension from practicing as a GP, instigated by these same police officers; then being exonerated by the General Medical Council in 2016 of all the numerous false complaints made by these officers; and now this latest court success, 4 years later, gives some measure of vindication, but very little satisfaction. The chief constable should now publicly, and sincerely, apologise for the appalling conduct of not only a significant number of his own officers, but also those that represent him”. 

He added; “There should be a full investigation by the police watchdog into the fact that the police officer who arrested me was also holding himself out, at the same time, as a private detective to insurance firms, through a bogus company, and the whereabouts of the £183,000 said by the police themselves to have been paid to this officer by an insurance company at the time he carried out this completely unnecessary and unlawful arrest. The police watchdog, and the CPS, should also be looking very carefully at the transcript of the evidence given in court by DC Lunn’s line manager, DI Mark Taylor, and ask why he complied with an order by a senior officer in a conspiracy to keep the improper activities of the former DC Lunn secret from the people he was prosecuting, and the trial jury, which may make their trial unfair and convictions unsafe”

Finally, he said: “I am very grateful to my barrister, Mr. Ian Pennock, who has remained steadfast throughout this ordeal and, along the way, has put those who believed they could deny me justice, firmly in their place”.

West Yorkshire Police press office was been contacted for comment. They did not respond.

Page last updated: Thursday 28th October, 2020 at 1255 hours

Corrections: Please let me know if there is a mistake in this article. I will endeavour to correct it as soon as possible.

Right of reply: If you are mentioned in this article and disagree with it, please let me have your comments. Provided your response is not defamatory it will be added to the article.

© Neil Wilby 2015-2020. Unauthorised use, or reproduction, of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from, and links to, the article (or blog) may be used, provided that credit is given to Neil Wilby Media, with appropriate and specific direction to the original content.