'I'm going to make an example of you!' These were schoolday words that would invariably diminish the spirits. For the example was unlikely to be an academic one and would usually involve physical pain.

But it was the financial rather than the physical pain of the Merseyside Chief Constable that was in issue before the Court of Appeal on 20 December 2006 in Rowlands v Chief Constable of Merseyside Police [2006] EWCA Civ 1773. For the Court of Appeal found the Chief Constable vicariously liable for aggravated and exemplary damages following an unjustified arrest that had been ‘carried out in an arrogant and abusive manner and was followed by a persistentattempt to justify it through the giving of false evidence designed to procure her conviction'.

It is section 88 of the Police Act 1996 that provides for the vicarious liability of chief police officers in respect of the defaults of their constables. As the measure rather wordily puts it (in section 88(1)):

'The chief officer of police for a police area shall be liable in respect of any unlawful conduct of constables under his direction and control in the performance or purported performance of their functions in like manner as a master is liable in respect of any unlawful conduct of his servants in the course of their employment, and accordingly shall, in the case of a tort, be treated for all purposes as a joint tortfeasor.'

At first instance, whilst being awarded damages in relation to personal injury, pain and suffering, psychiatric harm, false imprisonment and malicious prosecution, the judge did not consider either aggravated or exemplary damages to be appropriate in this case.

However, the Court of Appeal disagreed. Aggravated damages (per Lord Woolf M.R. in Thompson v Commissioner of Police of the Metropolis [1997] 2 All ER 762) '. . .are primarily to be awarded to compensate the plaintiff for injury to his proper pride and dignity and the consequences of his being humiliated' although they can contain a 'penal element'. Whilst, aggravated damages are primarily intended to be compensatory and not punitive (and therefore any injury for which compensation has been given as part of the award of basic damages should not be further compensated in aggravated damages), nevertheless:

'. . .the distinction between basic and aggravated damages will continue to have a part to play as long as the right to recover for intangible consequences such as humiliation, injury to pride and dignity as well as for the hurt caused by the spiteful, malicious, insulting or arrogant conduct of the defendant attaches to some causes of action and not others.'

In the instant case:

'. . . the circumstances surrounding Mrs. Rowlands' arrest and prosecution were of a kind that were liable to induce feelings of humiliation and resentment which can only have been exacerbated by the willingness of the police to give false evidence in support of an unjustified prosecution. In my view, therefore, the judge was wrong to withdraw from the jury consideration of the claim for aggravated damages, although it was necessary to warn them of the dangers of compensating Mrs. Rowlands twice in respect of the same harm.'

Exemplary damages can be awarded in exceptional cases (since damages are essentially compensatory rather than punitive) (amongst other things) to punish oppressive, arbitrary or unconstitutional acts of government servants. In the view of the Court of Appeal evidence as to the behaviour of the police officer in question was capable of supporting a finding of oppressive, arbitrary and unconstitutional action. For there was evidence that that officer had physically restrained the Claimant:

'. . . without having had any legitimate reason for doing so, had handcuffed her and placed her in a police car; that he had deliberately caused her unnecessary pain by tugging on the handcuffs while she was in the car; that he had procured her continued detention by giving false information to the custody sergeant to ensure that she was charged with an offence which he knew she had not committed; and that he had given false evidence at her trial in an attempt to secure her conviction, or which he must at least have known was liable to have that result.'

In the circumstances, Moor-Bick LJ considered that '. . .the conduct of the police in this case was worthy of significant punishment' and the Court of Appeal consequently approved both aggravated and exemplary damages. And whilst section 88(4) of the Police Act 1996 provides that any section 88 damages are to be paid out of the police fund (subject to the requirements of that section) nevertheless, such damages in such circumstances do not enhance any reputations involved. So still not good to be made an example of, particularly by the Court of Appeal.

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