Why Police Officers Should Think More

By Iain Gould, Solicitor

You’d expect that senior police officers would think about the law when authorising a person’s detention under the Police and Criminal Evidence Act after an arrest by a more junior officer. They are more experienced and have more training after all.

Unfortunately, as the two cases below show, the ability of custody officers and other senior officers to apply their minds varies greatly, which can lead to people being unlawfully arrested and detained. As I explain below, this lack of thought costs us all.

Getting the Police and Criminal Evidence Act Right- Dorset Police

The Police and Criminal Evidence Act 1984 (as amended) (“PACE”) introduced a number of safety checks to ensure that following an individual’s arrest, s/he is processed fairly and within the law.  An individual’s arrest and detention should be reviewed on a regular basis, particularly given that the police must justify any detention minute-by-minute.

It is therefore heartening to come across a case where a custody officer does his job and objectively assesses the lawfulness of an arrest and grounds of detention.  Step forward Sergeant A of Dorset Police (name withheld for privacy reasons).

Sergeant A was the custody officer on duty when my client Mr X (again, name withheld for privacy reasons) arrived in handcuffs after his arrest for obstructing police.

Mr X had been out with a friend who, at the end of the evening, offered to give him a lift home.  Neither man had been drinking.  En route, the car was stopped by uniformed traffic police.

Mr X’s friend, the driver, was requested by the traffic officers to switch off his engine and step out of the vehicle.  He refused.

The doors of the vehicle had been locked and the traffic officers’ attempts to persuade the driver to step out of his vehicle proved unsuccessful.  The officers therefore requested further assistance.

Two more police officers arrived at the scene.

One of them warned the driver that unless the door was opened voluntarily, he would use his baton to break into the vehicle.  In the absence of any co-operation by the driver, the officer then struck the offside window of the vehicle on a number of occasions before the window shattered.

The act of breaking the window succeeded in persuading the driver to unlock and exit the vehicle. Upon doing so, both he and my client were arrested for obstructing a police officer in the execution of his duty.

Both men were taken to Bournemouth Police Station.  There the arresting officer advised Sergeant A, the custody officer, of the arrest circumstances.

The Law About Obstructing a Police Officer

Section 89(2) of the Police Act 1996 states it is an offence to wilfully obstruct a constable in the execution of his duty, or a person assisting a constable in the execution of his duty.

The legislation states that a person obstructs a constable if he prevents him from carrying out his duties or makes it more difficult for him to do so.

Crucially, the obstruction must be ‘wilful’, meaning the accused must act (or refuse to act) deliberately, knowing and intending his act will obstruct the constable.

There was no evidence that my client Mr X was ever asked to assist the officers in gaining the driver’s cooperation. He was never asked to:

  • disclose the driver’s name;
  • give an account; or
  • open his door.

Mr X had simply sat passively in the vehicle at all times.

Applying the law correctly, the Sergeant refused to authorise Mr X’s detention on the basis that ‘no positive acts’ had been performed by my client to prevent the officers from doing their duty.

He was released from custody shortly thereafter.

Compensation for Unlawful Arrest

Imprisonment is from the moment someone’s liberty is interfered with (not, for example, when detention is authorised at the police station).

Even though my client was released by the custody sergeant within a few minutes of his arrival at the police station, he was entitled to be compensated from the time of his arrest to the time of his release, and for the force used against him (he was handcuffed as soon as he got out of the vehicle).

I recovered £2,000 plus costs for Mr X, which was more than reasonable in the circumstances.

Getting it Wrong- Kent Police

Compare the professionalism of Sergeant A of Dorset Police with senior officers of Kent Police.

One evening in April 2014 my client Mr M had an argument with his wife.  His wife called the police for support and because she had no one else to call.  She was hoping the police would mediate.  Upon arrival, officers spoke with both Mr M and his wife.

My client’s wife told the police that she and Mr M had argued but that no violence had occurred.  She did, however suggest that she had been assaulted by her husband over a year earlier after an argument about the children.  The police told Mr M he had to leave the home.

He refused, and at about 8 p.m. the officers arrested my client for common assault.

The Law to Justify Arrest in a Common Assault

An offence of common assault is committed when a person either assaults another person or commits a battery.

An assault is committed when a person intentionally or recklessly causes another to apprehend the immediate infliction of unlawful force.

A battery is committed when a person intentionally and recklessly applies unlawful force to another.

On the basis of my client’s wife’s report, it could be argued that the officer had reason to suspect my client had (on his wife’s account) committed a common assault a year before.

But, by reason of s.127 of the Magistrates Court Act, any prosecution for common assault must be brought within 6 months from the time when the offence was committed.

So, the offence was not made out, meaning that Mr M’s arrest and detention would be unlawful. Unfortunately, the arresting officer did not consider this before proceeding.

Senior Officer Errors

Shortly after arrest, Mr M was taken to North Kent Police Station and put before Sergeant C.

Section 34(2) of PACE states that if a custody officer becomes aware that the grounds for holding a person no longer exist then he must order his release.

Only the custody officer has the authority to release a person from police detention.

Sergeant C was given the circumstances of arrest which he recorded as “common assault in February 2013” and, at approximately 8.30 p.m. he authorised detention.  In doing so the custody officer also failed to identify the (obvious) time limit on prosecution.

Police and Criminal Evidence Act Protection

PACE doesn’t stop its guidance after the custody officer justifies initial detention.

Perhaps anticipating mistakes by senior officers, the lawmakers built in a number of safety nets to ensure that only people who should be in custody stay there.

Not later than 6 hours after detention is first authorised at the police station, an Inspector is obliged to carry out a review to determine that the grounds for detention remain.

Section 40 of PACE states that the review officer is responsible for periodically determining if a person’s detention, before or after charge, continues to be necessary.  This requirement continues throughout the detention period.

Enter Inspector K who at 11:13 p.m. carried out the first custody review.

You would think that a senior officer with the rank of inspector would identify the historic nature of the “offence” and realise that it was too late to prosecute.  Sadly, Inspector K raised no concerns and allowed Mr M’s continued detention.

Later the custody officer, Sergeant C, was replaced by Sergeant R.  Surely he would notice a problem?  No, he too failed to spot that the alleged offence was time-barred because of the statutory time limit.

PACE ensured yet another custody review (not later than 9 hours after the first review).  The senior officers dutifully ensured it was done.

Step forward Inspector S.  At 7.15 a.m. he too carried out a review and yes, he too failed to spot the time limit problem.

Mr M asked for the services of a duty solicitor.  Enter the heroine of this story: Ms L of TBW Solicitors.

Ms L considered the custody record and immediately spotted the problem: the alleged offence which the arresting officers relied upon was time-barred.

She immediately made representations and within minutes, Mr M was released.  In all, Mr M spent approximately 19 hours in custody.

This is where I come in. As a solicitor who represents people in civil actions against the police I receive many referrals for help from other solicitors and their clients. I am now representing Mr M in an action for false imprisonment against Kent Police.

I am confident that he will receive significant compensation, as he should considering the appalling errors made by no fewer than five Kent Police officers which led to him being unlawfully arrested and detained.

Lip Service to the Police and Criminal Evidence Act

Mr M’s case shows that no matter how many safeguards lawmakers introduce, they can’t legislate to make police officers think.

The Police and Criminal Evidence Act (as amended) isn’t some obscure law. It’s a cornerstone of criminal law as much of it deals with arrest and detention. Every police officer receives extensive training on it, and senior officers such as custody sergeants work within its rules every day.

But it’s one thing to follow the time-limits in the PACE guidelines and pay lip service to the process, it’s quite another to think about why the person in custody is there in the first place.

As comedian Ron White says, “you can’t fix stupid”.

If you want help claiming compensation against the police contact me using the form below or via my firm’s website.

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About iaingould

Actions against the police solicitor (lawyer) and blogger.
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