Can the Police detain you without arresting you?

By Iain Gould, solicitor

Do the Police in England and Wales have a power to ‘detain’ you without formally arresting you?  The answer to this question is not as straight forward one might think.  A lot of members of the public – and apparently some Police Officers themselves – assume that the Police can detain a person without arresting them, perhaps whilst they consider whether to formally arrest them or not.  However, with a few limited exceptions, the police do not in fact have such a power.

This was made clear in the case of Walker v The Commissioner of Police of the Metropolis [2014] EWCA Civ 897 in which a Police Officer had blocked Mr Walker in a doorway, preventing Mr Walker from leaving whilst the Officer sought to question him, but without the Officer intending or purporting to arrest Mr Walker.  The Officer in his statement said “I did not touch the Claimant but I made it very clear to him that he was not free to move”.

When the matter came to Court, the Police accepted that Mr Walker’s initial detention in the doorway was not for the purpose of arrest, but rather for the purpose of pursuing enquiries only. When this matter came before the Court of Appeal, the Court considered an earlier case of Collins v Wilcock in which a Police Officer took hold of a woman’s arm for the purposes of asking her questions, but without any immediate intention to arrest the woman.

The woman resisted the Officer and was initially convicted thereby of assaulting an Officer in the execution of her duty – but the conviction was overturned on appeal when the Court concluded that, unless exercising a power of arrest, a Police Officer has no greater powers than a member of the public does to detain another person, and therefore anything that went above and beyond ordinarily accepted physical contact (eg tapping someone on the shoulder to get their attention) constituted unlawful assault and battery. Hence in Collins v Wilcock because her act was unlawful, the Police Officer who was seeking to detain the woman for questioning was not acting in the execution of her Police duty. It was right then that the woman’s conviction for resisting therefore be overturned.

Robert Gough LJ’s Judgment in Collins –v Wilcock concludes as follows (at 11.78D-H) –

“If a Police Officer restrains a man, for example by gripping his arm or his shoulder, then his action will also be unlawful, unless he is lawfully exercising his power of arrest.  A Police Officer has no power to require a man to answer him…accepting the lawful exercise of his power of arrest, the lawfulness of a Police Officer’s conduct is judged by the same criteria as are applied to the conduct of any ordinary citizen of this Country.”

There are 3 exceptions to the general rule that a Police Officer grabbing hold of a person or impeding their freedom of movement (even without physical contact) to ‘detain’ them without arresting them (and any arrest must of course be in accordance with the provisions of the Police and Criminal Evidence Act 1984 which provides that no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as practicable after, the arrest) is unlawful except in 3 particular situations – firstly, if an Officer is using his statutory power of ‘Stop and Search’, or secondly if the temporary restraint/detention of the person is necessary in order to prevent an imminent breach of the peace –

“Every citizen (whether Policeman or not) in whose presence a breach of the peace is being, or reasonably appears to be about to be committed, has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those steps in appropriate cases will include detaining him against his will short of arresting him; ‘Albert Lavin [1982] AC 546, HL’ Archbold 2014 paragraph 19-429.

The third exceptional situation, is when the Police are conducting a lawful search of premises eg your home, and the question arises whether, and to what extent during the search the Police can lawfully detain you and the other occupants of the house.  I shall come back to this question in more detail below, as it was the key issue in a case which I have recently successfully concluded on behalf of a family detained by the Police but not arrested, during the search of their home.

To recap however, before we deal with the specific situation of search warrants at premises, the law is quite clear that unless an Officer is arresting you, or he has reasonable grounds to carry out a stop/search upon your person (eg for drugs for weapons or stolen goods) or he has reason to believe that you are about to be involved in a breach of the peace (ie that you are actually causing or imminently likely to cause harm to a person or his/property) then the Police have no more right to manhandle you or deprive you of freedom of movement than any other member of the public.

Most cases of such illegal ‘detention’ by Police Officers involve physical contact such as the case of Wood v DPP [2008] EWHC 1056 (Admin) which once again involved an Officer taking hold of a person by the arm in order to question, but not arrest them (even if the questioning was in order for the Officer to form a view as to whether or not the person should be arrested).

Such unlawful physical contact by a Police Officer would constitute assault and battery, even if no injury as such was sustained, whilst an Officer detaining a person without touching them but without the threat of force (actual or implied) or, as in the case of Walker by blocking a person’s route of ‘escape’ from a confined space, then this would amount to false imprisonment, and likewise give rise to a claim for compensation.

False imprisonment is a tort (civil wrong) which can of course be committed in any circumstance where a person is deprived of their liberty and cannot freely go about their business and it therefore applies just as much to a situation where a person is handcuffed in the street, or otherwise held by a Police Officer, or is locked in a police car as it does to actually being placed ‘behind bars’ in a police cell.

The amount of compensation that can be awarded, might, however, be fairly minimal if the detention only amounted to a ‘technical’ false imprisonment for a very short period of time.  This was actually the conclusion reached in the ‘Walker’ case, as Mr Walker’s detention in the doorway only lasted for a matter of seconds, before he then became violent himself and was legitimately arrested.

The damages awarded to Mr Walker by the Court of Appeal was therefore only £5!

As you will see, the case in which I have recently represented a family subject to unlawful detention during a Police search of their home resulted in a much more substantial award of damages, which in my view, for all the reasons set out below was only right and proper.

Detained by Police but not arrested during a house search

My clients, Mr and Mrs John and Gill Watkins and their son Josh (who was 15 years old at the time) were at home on the morning of 28 January 2015 when Officers from Wiltshire Constabulary burst into their home, startling my clients who were in bed.   The Officers had come in order to execute a warrant to search the premises (and its occupants) under the Misuse of Drugs Act.  The warrant arose from intelligence that drugs were being dealt from the house.

Several officers immediately went to the bedroom of 15-year-old Josh, who was in bed, and they then handcuffed J informing him that he was to be detained whilst the search of the premises took place.

Josh asked the Officers several times whether he was under arrest but his question was ignored.  In fact, at no point did any Officer purport to formally arrest Josh, but that did not stop them handcuffing him and taking him outside to a police van, in which he was then detained for approximately 2 hours whilst the Police searched the house.

Shortly afterwards, Josh’s father John was also removed from the house by the Police and locked in a separate van.  Both vans were parked in a community car park close to the local bus stop. Again, the Officers did not arrest Mr Watkins for any offence, they clearly had no grounds to, but nevertheless, like his son, they kept him imprisoned in a van for 1 ½ hours until he began to ask to be allowed to contact a solicitor for advice as to the legality of his detention.

During his detention Mr Watkins was aware that several of his neighbours and other passersby and bus passengers could see him being detained in the van, which, in his own words made him feel ‘like an animal in a zoo.’

Eventually Mr Watkins and half an hour later his son were released from the vans in which they had been locked, and the Officers departed the premises, having found no drugs or any other illegal material, and no further action was taken against any of the family in connection with this matter.

The Watkins family were understandably aggrieved by what had happened to them.  The family initially sought advice from criminal defence solicitor Paul Cantril of Aitkin & Co. Paul was of the view that the Police action was unlawful and intimated a claim.  Following investigation Wiltshire Constabulary denied liability suggesting that Mr Watkins and Josh were disruptive and aggressive towards the attending officers and in order that the warrant could be “executed safely and effectively”, both Mr Watkins and Josh were “placed” within a police van located outside the property.

The Watkins family disputed that they had been disruptive and aggressive and on that basis, Paul felt the actions of the Officers in detaining Mr Watkins and Josh were unlawful notwithstanding the denial of liability. Having referred a number of claims to me over the years, he asked if I would take the case on.  On review, I agreed that the Watkins family had a case and agreed to act.

It soon became apparent that the Police had arrived at the Watkins’ property on the day in question with the intention of immediately removing Mr Watkins and Josh from the property ‘in order to prevent them from interfering with the search unless they demonstrated a willingness to cooperate.’  There was however no evidence that Mr Watkins or his son had in any way actively sought to frustrate or interfere with the search and the allegation that Mr Watkins and Josh had been ‘aggressive and disruptive’ were dropped.  If they had been disruptive, then the Police could lawfully have arrested my clients for obstructing the Police in the execution of their duty.  As I say however, there was no evidence that any obstruction had occurred, the Police did not attempt to justify the detention of Mr Watkins and his son by reference to a lawful arrest, instead they took what appeared to be an entirely pre-emptive action to lock the 2 of them in confined spaces in the back of police vans in a public road for a period of around 2 hours.

I was of the view that this action was draconian, unnecessary and an illegal act on the part of the Police.

So the question arises, do Police Officers executing a search warrant at premises have a power to detain some or all of the occupants of the premises whilst the search is carried out, if those occupants are not doing anything which would otherwise amount to reasonable suspicion of a criminal offence, and thereby justify a lawful arrest?  To what extent are Police Officers who behave in the way that they did towards the Watkins family behaving outside the bounds of the law, and subjecting people such as the Watkins to false imprisonment?

There is extensive case law in regards to this issue.

Sedley LJ in the case of Thames Valley Police v Hepburn [2002] EWCA Civ 1841 gave Judgment as follows (para 14):-

“If a person obstructs a Police Officer in the execution of his or her duty an offence is committed and a power of arrest arises.  That, and not an implied power to detain or manhandle people who are doing nothing wrong, is how the law protects Officers executing a search warrant from interference.” 

 Whilst I wholeheartedly endorse that statement of the law, the Court have in other circumstances put a different interpretation on the powers of the Police whilst carrying out search warrants which might seem to justify limited acts of ‘detention without arrest’ during a search.

The apparently clear-cut definition given by the Court of Appeal in the case of Hepburn was however somewhat ‘diluted’ by a later Judgment (albeit from the High Court, which is a lower tribunal than the Court of Appeal) in the case of DPP v Meaden [2003] EWHC 3005 (Admin) [2004] 1 WLR 945 at paragraph 29 of the Judgment Rose LJ stated as follows:-

“The crucial distinction between Hepburn’s case and the present case … is that the search warrant in that case was limited to the premises, whereas here the warrant applied to both the premises and to any persons found there”.

 The Judge further went on to state, at paragraph 32:-

“Here the warrant authorised a search of premises and persons for controlled drugs … it could not be effective, particularly in premises on 2 floors, presently occupied by a number of people, if the occupiers were permitted to move about freely within the premises while the searches were going on.  Although I accept that it is for the Police to show, and the burden upon them is a heavy one, that the use of force was necessary and reasonable, it seems to me to be entirely reasonable that Officers should seek, by no more force than is necessary, to restrict the movement of those in occupation of the premises while those premises are being searched.”

I therefore anticipated, that in response to the claim of my clients the Watkins family, the Police might well seek to rely upon the Judgment in the case of Meaden, and although that was a decision by a lower Court than the Court of Appeal Judgment in Hepburn there was also an earlier decision of the House of Lords (therefore outranking the Court of Appeal decision) which I knew the Defendant could rely upon.  This was the case of Murray v Ministry of Defence [1988] 1 WLR 692.

In the case of Murray Army Personnel entered a house in Northern Ireland in order to search for a terrorist suspect.

The Soldiers conducting the search directed all the occupants of the house to assemble in one room until the person who they had come to arrest was identified and could then be formally arrested and removed from the house.

In his Judgment at page 700B Lord Griffiths states as follows:-

“That very short period of restraint when they were asked to assemble in the living room was a proper and necessary part of the procedure for affecting the peaceable arrest for the Plaintiff.  It was a temporary restraint of very short duration imposed not only for the benefit of those affecting the arrest but also for the protection of the occupants of the house and would be wholly insufficient to found an action for unlawful imprisonment.”

 This implied power of Officers, whether of the Army or the Police to temporarily restrict the liberty of the occupants of the premises where a search is being conducted was also endorsed by the Court of Appeal in the case of Connor and Others v Chief Constable of Merseyside Police [2006] EWCA Civ 1549.

This case involved a search of premises by the Police for firearms believed to have been involved in ‘gangland incidents’.  During the search the adult male occupant of the house, Mr Connor, was handcuffed and detained in a police car for less than an hour before then being brought back into the house to accompany a specialist firearms search team as they carried out their search.

Mr Connor brought a claim for false imprisonment against Merseyside Police in relation to his period of detention in the police car, which was dismissed by The Court of Appeal.

The Judgment of Lady Justice Hallett (at paragraph 72) was as follows:-

He was detained in a warm police car and only for so long as was necessary to conclude the first part of the search …  His period of restraint may not have been as short as it was in the case of Murray but it was a restraint of relatively short duration … imposed not only for the benefit of those affecting the search, but also for the protection of those in and about the house.  In my view, it is simply unarguable that on the facts of this case his detention was unnecessary and disproportionate.”

 On the basis of the decisions in Murray and Connor it does appear unarguable that the Police have got a power, when executing a search warrant, to temporarily restrict the movement of people in the premises being searched without necessarily having any grounds or requirement to formally arrest them.

However it is equally clear from the careful wording which each of the Judges have used in those cases, that this power is not a ‘cart blanch’ to allow the Police to do whatever they want with the occupants of the premises.  It is clear that any detention imposed whether by handcuffing, locking a person in a police vehicle, or even restricting their movement to one room of the house, must be reasonable and proportionate and must go on no longer than is absolutely necessary for the police to safely and efficiently carry out the search.

It will be noted that both the cases of Murray and Connor not only involved far more serious circumstances – one was a search for a terrorist suspect, the other was a search for firearms connected with gangland incidents, and both searches carried a real risk that the people involved might be injured, or even killed, in an armed confrontation, whereas the search of the Watkins’ family property was in connection with suspicion of low-level distribution of drugs and the Police had no reason whatsoever to believe that Mr Watkins or any other member of his family were terrorists or gangsters, or in any other way armed and dangerous.   Furthermore, the detention in both of the far more serious cases was significantly shorter than that of the case of my clients.

In Murray the detention was only for a matter of minutes, whereas in Connor, even in the circumstances of it being a firearms search, the detention was for less than an hour.

In my client’s case however, both Mr Watkins and his teenage son were detained for over twice as long as the suspected gangster Mr Connor was.

I therefore had every reason to advise my clients that their detention was almost certainly unlawful on the grounds of it being unnecessary, and even if it was necessary, prolonged to a duration which was completely unreasonable.

There was also no need for the detention to have been carried out in the confined space of police vans parked on the public highway.  I see no reason why the Watkins family couldn’t simply have been asked to assemble in one room and kept there under supervision while the rest of the house was searched.  I agreed with the opinion of Mr Watkins, which that the Police had chosen to publicly humiliate him and his son by treating them in the manner that they had.  There was no reason at all why the search could not have been safely and efficiently carried out with the Watkins family being allowed to remain in the privacy and comfort of one room of their house whilst it was conducted.

As is so often the case, the Police initially disputed my client’s claims and filed a Defence alleging that they had correctly exercised their power to detain Mr Watkins and Josh.  Notwithstanding their denial, I believe that the Police knew full well that the Offices involved had gone too far in imposing such a draconian detention, and indeed shortly prior to trial the Police backed down and agreed to pay my clients damages of £7,250 plus legal costs.

In my opinion this was the right outcome, and it is entirely right that the Court protects the liberties of individuals not to be detained by the Police without arrest save in special circumstances and carefully regulates the conduct of the Police in those special circumstances to ensure that the power of detention accompanying a search warrant is not abused or exploited by the Police.

Of course I agree that it is entirely sensible that the Police should have powers to restrict people’s movements during a search, or to briefly detain them in ‘common sense’ situations where otherwise the search cannot be carried out in an orderly manner, or particularly if the safety of people involved is at risk, especially when the search is for firearms or particularly dangerous suspects.

In the case of the W family however none of those special criteria applied – the detention was not a brief one, it was not based on any actual disruption to the search on the part of Mr Watkins or his son (only a suspicion by the Police that they might be disruptive) and the search was for illegal drugs, not firearms with the Police having no reason to suspect violence would be offered to them by the occupants of the house.

I feel that it is important that cases such as those of the Watkins family should be pursued through the Civil Courts as an essential part of the checks and balances which maintain our civil liberties.  If claims as such as those of the Watkins family were not brought then I believe it is likely we would see the Police incrementally extending their use of detention without arrest powers and subjecting more people to unlawful detention in circumstances which do not have to be justified by the strict criteria which are quite rightly applied to formal arrests.  The policing of Police powers through the Civil Justice System is essential to the functioning of a free and healthy democratic society, and I am proud to play my part in that.

All names changed.

Author: iaingould

Actions against the police solicitor (lawyer) and blogger.

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