Can the Metropolitan Police justify Max Clifford’s arrest?

By Iain Gould, Solicitor

Actions against the police solicitor Iain Gould

Iain Gould, police claims specialist solicitor

Another day & yet another high-profile arrest for alleged historic sexual abuse. Yesterday, the well-known publicist, Max Clifford, was arrested by the Metropolitan Police on suspicion of sex offences that date back 35 years.

Mr Clifford, the self-styled ‘PR guru’, was arrested shortly after 7.30 am yesterday (Thursday 6 December) at his home in Hersham, Surrey and taken to a police station in Central London where he was detained and quizzed for 12 hours.

Following his arrest, police searched his house for several hours before emerging with sealed black evidence bags which were placed into the back of two vans.

Undoubtedly the arrest came like a bolt out of the blue for Mr Clifford, who spoke out only a few months ago about the police enquiry into the conduct of BBC DJ and TV presenter Jimmy Saville.

He said that he had been approached by celebrities from the 1960’s and 1970’s who were ‘frightened to death’ that they would be caught up in the scandal.

It is likely that the allegations of sexual abuse have been prompted by the Jimmy Saville enquiry. Indeed, the Metropolitan Police have confirmed that the arrest is part of Operation Yewtree, which is looking at three categories of alleged sexual offences: those involving Saville; those involving Saville and others; and those involving others. Mr Clifford’s arrest comes under the later group.

Mr Clifford has vehemently denied the allegations which led to his arrest, saying that they dated as far back as 1977 and that ‘these allegations are damaging and totally untrue’.

Justifying arrest- the necessity test

The burden of proof falls on the police to justify any arrest. This has proven to be so even during times of great duress or urgency, such as during the darkest days of World War II, when Lord Atkin stated,

“[I]n English law every imprisonment is prima facie unlawful and … it is for a person directing imprisonment to justify his act.” (Liversidge v Anderson (1942))

Historically, under Section 24 of the Police and Criminal Evidence Act (1984) (‘PACE’), an Officer can arrest where he honestly suspects the commission of an offence and he holds that suspicion on reasonable grounds. Those grounds need to be more than a hunch, but can be less than the standard for admissible evidence. I have recently written a guest blog post on the Charon QC website about another recent high-profile arrest, that of Christopher Jeffries, which expands on this.

In 2006, section 24 of PACE was amended to allow an officer to only arrest in the above circumstances, if s/he also had reasonable grounds for believing that it was necessary to arrest for any of the following reasons (emphasis added)

(a)        to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person’s name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name);

(b)        correspondingly as regards the person’s address;

(c)        to prevent the person in question –

(i)         causing physical injury to himself or any other person;

(ii)         suffering physical injury;

(iii)        causing loss of or damage to property;

(iv)        committing an offence against public decency (subject to subsection (6)); or

(v)        causing an unlawful obstruction of the highway;

(d)        to protect a child or other vulnerable person from the person in question;

(e)        to allow the prompt and effective investigation of the offence or of the conduct of the person in question;

(f)         to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.

This was clarified in Hayes v Merseyside Police (2011), when the Court of Appeal established that the test was simply whether:

a. the officer actually believed that arrest was necessary, and for one of the reasons specified above; and

b. that objectively that belief was reasonable.

Common police claims

The consequence of the above statutory guidance and case-law is that I anticipate the Police will argue that the arrest of Mr Clifford was necessary for the purpose of ‘prompt and effective investigation’ by questioning at a formal interview.

But could the Police have simply invited Mr Clifford to attend the police station at a mutually convenient time to give a statement under caution (i.e. voluntary attendance), especially given the age of the allegations?

Was a dramatic ‘dawn raid’ formal arrest really necessary?

The Police would say that the mere fact of an arrest pre-interview will put more pressure on the arrested person during questioning. They may also point out that making a formal arrest prevents any interruption of having to make an arrest should the voluntary attender seek to leave.

They could also argue that arrest was justified due to the possible need to take certain protective measures that can only be taken following arrest, i.e. imposing bail conditions.

There has been limited litigation on this point but it is clear that the Courts will give the Police substantial leeway and that unless there appears to be compelling evidence that the officer knew or ought to have known that the suspect would co-operate fully on a voluntary basis, an arrest will be deemed lawful.

As a result, in the event Mr. Clifford pursues a civil compensation claim against the police, success is by no means assured.

 

Iain Gould is a solicitor who specialises in actions against the police claims. You can read more about him at www.iaingould.co.uk.

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