APPEALS ON FACTS AND WITNESS EVIDENCE: DAMNED IF THE WITNESSES AGREE: DAMNED IF THEY DON’T
The judgment of the Court of Appeal in Shittu v The Home Office [2017] EWCA Civ 1748 contains some interesting observations about attempts to appeal on findings of fact, “judgecraft” and fact-finding generally.
“The case followed the pattern of many criminal trials as well as civil ones where evidence is given by several agents of the State (police officers, immigration officers and the like) on one side and by a single individual on the other about an incident which lasted no more than a few minutes, involved a great deal of sudden movement and was not captured on film or CCTV, but where the agents of the State make notes or complete forms within a short time of the incident. If their accounts are identical they are cross-examined on the basis of collaboration, collusion or (as in this case) conspiracy. If their accounts differ, they are cross-examined on the discrepancies.”
THE CASE
The claimants brought an action alleging excessive force by immigration officers when she was the subject of directions for removal from the United Kingdom. The claimant was unsuccessful at trial. The claimants appealed.
ON APPEAL
Lord Justice Bean considered the grounds of appeal.
“Ground 1: The Learned Judge was wrong to decide that a reasonable and/or proportionate method for protecting an 8 year old girl who is squeezed too tightly by her mother is to immediately resort to restraint against the mother in order to forcibly remove the child from her arms. Any reasonable person seeking to protect a child in these circumstances would first attempt less invasive and more child-centred methods, and the judge was wrong to hold otherwise.
Ground 2: The learned judge misled himself because he erroneously regarded Veronica’s use of passive resistance to avoid deportation as:
a) morally wrong and/or unlawful, a judgment expressed in paragraph 6 and in the third last sentence of paragraph 9; and
b) a moral and/or legal justification for the use of force, a judgment expressed in the final sentences of paragraphs 14 and 22.
Ground 3: The learned judge either failed explicitly to find, or if he did so find, failed to supply any reasons for finding; that the officers genuinely believed that the first Claimant was harming her child BEFORE the decision to use force was taken rather than AFTER force was already in the course of being applied.
Ground 3A: Although the learned judge found that prior to C1 harming C2, officers were engaged in attempting to remove Kenny from her without her consent and in doing so were touching C2, he has failed to give any reason why this initial touching was not already an unlawful battery of the latter.
Ground 4: The learned judge appears to have accepted that the operative reason in the minds of the immigration officers for using force to separate mother and child was the altruistic motive of trying to protect the child. However the only evidence relied upon in reaching that conclusion were the claims of immigration officers themselves, and contrary to the guidance of Goff LJ in Armagas Ltd v- Mundogas SA (The Ocean Frost) [1985] 1 Lloyd’s Rep.1 at 57, these claims were not evaluated “by reference to objective facts proved independently of [the officers’] testimony, in particular by reference to the documents in the case and also to pay a particular regard to [their] motives and to the overall probabilities.”
Ground 5: The Learned Judge failed to provide any reason why any belief held by immigration officers that she was capable of harming her daughter so severely as to warrant being restrained was a reasonable one.”
Discussion
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Although Mr Stephen Cragg QC placed Ground 1 at the forefront of his argument and argued it first, I think it is more logical to deal with Grounds 3-5 first: as with a trial judge giving judgment at the end of a witness action, it is usually better to make or consider findings of fact before going on to deal with the legal implications of the facts.
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I begin with Ground 4, since this goes to the heart of the factual dispute. This was whether the Immigration Officers who separated Kenny from Ms Shittu did so with a view to protecting the child from harm or to facilitate the removal of the family from their home. The judge found, in paragraph 64 of his judgment, that it was the former. It would have been open to him to reject the explanation given by the Immigration Officers, and I doubt whether such a conclusion would have been appealable. However, he reached his conclusion after listening to lengthy cross-examination of the four witnesses for the defendant, and with a proper appreciation of the points made on the other side. For example, it was pointed out to him that the standard operational plan for a removal only requires officers to give a family 30 minutes to pack their belongings before leaving. At paragraph 62 the judge acknowledged the force of the argument for the Claimant that the officers were using force “simply to facilitate rapid accomplishment of the task in the face of dogged opposition”. Nevertheless, for the reasons he gave, he was satisfied that this was not their motivation. Similarly, in paragraph 50 he observed that he had been troubled during the trial by an absence of evidence about who had decided to use force to separate Veronica and Kenny, but he accepted the evidence that the use of force “was spontaneous because the circumstances made it obvious that Veronica was hurting Kenny”. It was open to him on the material before him to do so.
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Ground 4 refers to the guidance in the Ocean Frost case (Armagas Ltd v Mundogas SA [1986] 1 AC 717) that the testimony of witnesses should be evaluated by reference to objective facts which can be proved independently. Any trial judge, particularly one as experienced as this trial judge in hearing witness actions, is very well aware of this proposition. In any event, if one is referring to elementary principles of judgecraft set out or cited in the Ocean Frost case, it is as well to refer to the words of Lord Macmillan in Powell v Streatham Manor Nursing Home [1935] AC 243 at 256:-
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“Where….the question is one of credibility, where either story told in the witness box may be true, where the probabilities and possibilities are evenly balanced and where the personal motives and interests of the parties cannot but affect their testimony, this House has always been reluctant to differ from the judge who has seen and heard the witnesses unless it can be clearly shown that he has fallen into error”.
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In the Ocean Frost Dunn LJ, after citing this passage, went on to say that (especially if both principal witnesses show themselves to be unreliable) it is safer for a judge, before forming a view as to the truth of a particular fact, to look carefully at the probabilities as they emerge from the surrounding circumstances and to consider the personal motives and interests of the witnesses. In my view Judge Armitage did exactly that in the present case, with care and in considerable detail.
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IOs Amanda Cahill, Dawn MacLean, Daniel O’Neill and Kevin Kilbane were the four officers involved in the act of separating Kenny from Ms Shittu. Each compiled a “use of force form”. IO Cahill also completed a “verbal abuse/threatening behaviour report form” on the day of the incident with a detailed account of the incident running to 1½ pages typed with single spacing.
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The case followed the pattern of many criminal trials as well as civil ones where evidence is given by several agents of the State (police officers, immigration officers and the like) on one side and by a single individual on the other about an incident which lasted no more than a few minutes, involved a great deal of sudden movement and was not captured on film or CCTV, but where the agents of the State make notes or complete forms within a short time of the incident. If their accounts are identical they are cross-examined on the basis of collaboration, collusion or (as in this case) conspiracy. If their accounts differ, they are cross-examined on the discrepancies. This is familiar territory for most circuit judges and the judgment in the present case shows that the judge dealt with this issue conscientiously and correctly. This central ground of appeal is, in effect, a perversity challenge to the findings of fact. In my view it is not sustainable. The judge was entitled to accept IO Kilbane’s account of the incident for the reasons he gave.
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Ground 3 criticises the findings or lack of findings of a genuine belief by officers that the first Claimant was harming her child before the decision to use force was taken. But this is, with respect, fully answered in paragraph 64 of the judgment. The judge found that “in the agony of the moment” Ms Shittu squeezed Kenny sufficiently tightly that it reasonably appeared to the officers that she was in fact harming the child in what the judge correctly described as “a heated and volatile situation”. He found that the heat and volatility were generated by Ms Shittu whose actions were unpredictable. The judge was satisfied that the force used to compel Ms Shittu to release Kenny was no greater than was reasonably required to protect Kenny from actual and impending harm; that the officers believed that this was what they were doing; and that in his view they were right. In paragraph 63 he had said that he was satisfied that the officers acted spontaneously in circumstances which seemed to them at the time sufficient to warrant immediate intervention.
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Ground 3A was added by amendment at the permission to appeal stage without the Home Office having had the opportunity to make representations about it. The issue is not mentioned in the judgment below and seems only to have been mentioned in the briefest of forms, if at all, in oral argument. If the judge was right on the issue of the officers’ motive, Ground 3A cannot succeed. If (contrary to my view) the judge should have held in the Claimant’s favour on the motive issue, Ground 3A would add nothing. Mr Cragg realistically accepted that even if this ground were soundly based in fact and in law it could not of itself warrant any more than nominal damages. I would therefore formally refuse leave for it to be raised in this court.
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Ground 5 is, with respect, a jury point. It is of course unusual for mothers hugging their daughters to cause them injury. But this was a mother who on any view of the facts was in an extremely agitated state, upset and screaming. On this issue too the findings by the judge at paragraph 64 of the judgment were open to him on the evidence.
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Against the background of my conclusion that the findings of fact by the trial judge cannot successfully be challenged I return to Ground 1. I accept that 8 year old children are not usually embraced by a parent in circumstances which can even justify, let alone require, the forcible separation of parent and child. But this was an unusual case where the mother had lost control and had the child in what IO Kilbane described as a “bear hug”, and the child was screaming. In those circumstances the trial judge was entitled to find that the officers genuinely and reasonably believed that it was necessary to take the action which they did and that such action was in those circumstances reasonable. This is not, therefore, a suitable case in which to pronounce on what level of force would be appropriate in order to separate an adult from a child, where there is no perceived risk of imminent harm to the child, simply in order to facilitate a removal.
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Mr Cragg left Ground 2 until last and I have done the same. I do not think that the judge’s findings of fact can be impugned on the basis that “he erroneously regarded Veronica’s use of passive resistance to avoid deportation as morally wrong and/or unlawful – or as a moral and/or legal justification for the use of force”. He made a finding at paragraph 22 that Ms Shittu presented the officers with the stark choice of giving up on the attempted removal or resorting to a degree of force. That was not part of the Defendant’s case on the issue of whether the separation of Kenny from her mother was an unlawful assault and battery; on the contrary, it became part of the Claimants’ case in arguing that the purpose of using force had been to facilitate the removal. Nevertheless the judge found that Kenny was extracted from her mother’s “bear hug” because of the reasonable perception of the officers that the child was suffering harm. On the basis of that finding of fact on the central issue in dispute, the question of what the judge thought about the reasonableness or otherwise of Ms Shittu’s campaign of passive resistance is simply irrelevant.
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