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Masters v Chief Constable of Sussex, Court of Appeal, 3 October 2002

8 October 2002
The issues

Police – Misfeasance in Public Office – unlawful imprisonment .

The facts

The Claimant alleged that he had been wrongfully arrested, unlawfully imprisoned, assaulted and had been the subject of a malicious prosecution. The Jury were left with 18 questions of fact to consider. On the basis of their replies, the Judge concluded that the offence of assault had been made out and the tort of misfeasance. The Claimant had alleged that unnecessary force was used during his arrest and that in the course of that arrest, his right arm had been broken. The Police claimed that during the struggle, one of them had fallen onto the Claimant’s arm and that that had been the cause of the fracture and not the restraint applied. An Orthopaedic Surgeon gave evidence that the nature of the break was consistent with the Police Officer’s story and was inconsistent with the Claimant’s. The Jury however found that excessive force had been used.

As to misfeasance, the Claimant’s case was that one Policeman had intentionally failed to tell another of the suspected fracture and that the Claimant was therefore caused pain when his finger prints were taken. The Officer over-seeing the finger printing process said that he was unaware of any fracture until he took hold of the Claimant’s arm. He said that the Claimant had been co-operative. This was consistent with the evidence of the Orthopaedic Surgeon as to the nature of the injury. It was submitted for the Chief Constable that the Jury’s finding as to excessive force was perverse in the light of the medical evidence and that the Judge’s finding as to misfeasance was wrong.

The decision

1. The Jury was entitled to reject the expert evidence. It should however have been properly directed by the Judge to consider that evidence properly in the light of the Claimant’s case. The Judge had given no direction whatsoever on the medical evidence which was very regrettable. The Jury could not properly have concluded that the fracture occurred as the Claimant alleged.

2. The Judge was wrong to find for the Claimant on misfeasance. The Jury questions made no provision for other ingredients of the tort, such as an ulterior motive to injure the Claimant. Even if the questions had been carefully drafted, the finding would not have been appropriate. To ask a Jury whether finger prints had been taken “with the intention to injure” was unjustified and the allegation should have been withdrawn from a Jury.

Appeal allowed.

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