I was recently asked to take on a case for a Polish man living in London, Mr K. He’d been arrested on a European Arrest Warrant and held for just under a day and then granted bail with onerous conditions that lasted nearly 2 months before being advised that his arrest had been “a mistake”.
In June 2012, the Regional Court in Warsaw had issued a European Arrest Warrant, arising from the conviction of Mr K on the 9 May 2006 for criminal offences.
In February 2013, the Serious Organised Crime Agency (now the National Crime Agency) certified the European Arrest Warrant, under Section 2 of the Extradition Act 2003.
In May 2013, Mr K was arrested by Thames Valley Police under the European Arrest Warrant and subsequently detained at his local Police Station. He appeared in custody at Westminster Magistrates’ Court, whereupon he was granted bail, whilst the extradition proceedings were adjourned to a later date.
In November 2013, the extradition proceedings were formally discharged against Mr K under Section 21(2) of the Extradition Act 2003 on the basis that it would be disproportionate to grant the Extradition request when considering the applicability of the Human Rights Act 1998 to Mr K’s circumstances.
On the 20 November 2013, a representative of the National Crime Agency emailed the Regional Court in Warsaw, providing a copy of the Court’s decision and confirmed that no appeal was to be pursued against the decision to discharge extradition proceedings.
As far as Mr K was concerned, that was that. He got on with his life. Having put his past indiscretion behind him, he was focused on raising his young family and working hard as a self employed builder.
Sadly, because of administrative error, in November 2015, the very same warrant was re-certified by the National Crime Agency and on the 30 March 2016, Mr K was arrested for a second time.
Mr K was transported to and detained once again at his local Police Station, where his detention was authorised on the basis of the European Arrest Warrant. Mr K was held overnight before once again, appearing in custody at Westminster Magistrates’ Court the next day.
During the hearing it was explained to the Court that the proceedings appeared to have been commenced in error, resulting from the re-certification of the same Warrant which had been discharged by the Court on the 12 November 2013. Proceedings were adjourned until the 19 May 2016 and thereafter the 31 May 2016 for the issue to be investigated.
Given the concerns which had been raised as to the lawfulness of the proceedings against Mr K, the CPS did not oppose an application made for bail on behalf of Mr K, which was granted, subject to the following restrictive conditions:
- Reside each night at the family address.
- Curfew between midnight – 04.00h (doorstep monitoring).
- The surrender of Mr K’s passport together with a prohibition on applying for any travel documentation.
- To report at his local Police Station each Tuesday, Thursday and Saturday between 5.00 – 7.00pm.
- To ensure that Mr K’s mobile telephone was switched on/charged at all times.
- Not to attend any Port, Airport or International Rail Station.
On the 19 May 2016, the CPS carried out a review of the proceedings and determined that the European Arrest Warrant (certified by the National Crime Agency on the 12 November 2015) was in fact identical to the previous European Arrest Warrant discharged on the 12 November 2013.
The reviewing CPS lawyer contacted and spoke to a representative of the National Crime Agency, who reviewed the National Crime Agency file and conceded that the European Arrest Warrant was indeed identical to the previously discharged Warrant, that a new European Arrest Warrant had not been issued and that the certification was in error. The National Crime Agency therefore did not oppose the CPS decision to apply to discharge the proceedings.
At Court on the 31 May 2016, the proceedings were formally discharged on the basis that no valid certificate was in force.
Mr K understandably now wanted restitution for his unlawful arrest and found a firm of solicitors online who pay to be number one in the Google rankings and claim to be experts in such cases.
Sadly, despite claiming to be experts in this specialised area, Mr K’s solicitors were fairly clueless as to who might be responsible; was it the Police who arrested Mr K, the National Crime Agency who re-certified the Warrant or the Crown Prosecution Service for prosecuting the warrant?
The solicitors instructed counsel who following review determined that a claim be intimated against the Crown Prosecution Service. The solicitors accepted this advice and duly sent a letter of claim.
Following investigation, the Crown Prosecution Service (correctly) denied liability maintaining that they had no involvement in the offending Warrant’s re-certification nor in the Warrant’s execution and Mr K’s arrest.
Upon review, the solicitors again sought counsel’s advice. Counsel agreed that the denial by the Crown Prosecution Service was justified and further advised that both the Crown Prosecution Service and the National Crime Agency “are essentially immune from the imposition of a duty of care” and that prospects of success were 50% or less. In the circumstances the solicitors were no longer willing to act and promptly closed their file leaving Mr K ‘up the proverbial creek’.
Mr K wasn’t prepared to give up. He established contact with me following an internet search for an experienced specialist lawyer. He provided a detailed history.
It was obvious to me that the only agency at fault was the National Crime Agency for it was they who had re-certified the Warrant in error. But what of the suggestion that the National Crime Agency (and the CPS) were “immune” from liability?
It’s true that when considering a claim for negligence, a Claimant can only succeed if he can establish that a duty of care existed on the facts of the case. As a general rule, no duty of care is owed by the NCA/CPS to those prosecuted by those state agencies. This follows from what has come to be known as the ‘Hill principle’ arising from the House of Lords decision in Hill v Chief Constable of West Yorkshire  AC 53 which established that the police owed no duty of care to individual members of the public for acts whether they be suspects, or potential victims of crime for the way in which an investigation is conducted. Elguzouli-Daf v Commissioner of Police of the Metropolis  QB 335 confirmed that the argument against imposing a duty of care on the CPS was even stronger because the work of the CPS involved the use of their discretion. The prosecutors were under a duty to treat defendant’s fairly but it did not follow that defendants should therefore be able to sue them for negligence. If such a duty were imposed there was a risk that prosecutors would be encumbered by seeking to protect themselves against such claims and valuable time and resources would be wasted. This principle applies without doubt to the NCA also. So, in short any claim for negligence was bound to fail.
But, Mr. K had been wronged; a mistake had been made and he had suffered loss. Was there an alternative remedy?
It struck me that Mr. K could bring an action for either false imprisonment or breach of the Human Rights Act.
The normal test to identify the tortfeasor liable for false imprisonment is to ask who was ‘active in promoting and causing’ the detention. See Aitken v Bedwell (1827) Mood & M 68; Ansell v Thomas  Crim LR 31, CA.
Here for the purposes of the claim for false imprisonment it appeared that the NCA was the instigator, promoter and active inciter of Mr K’s arrest and imprisonment. That phrase is taken from the Court of Appeal judgment in Davidson v Chief Constable of North Wales 2 All E.R. 597.
It was the NCA who erroneously re-certified the Warrant that led to the issue of the Warrant and Mr. K’s arrest and therefore the NCA who had instigated Mr. K’s imprisonment which lacked lawful justification and was therefore tortious.
Breach of Human Rights
I was also of the view that Mr. K might also have a claim for breach of the Human Rights Act 1998 (specifically his right to liberty under Article 5 and right to privacy and family life under Article 8 of the European Convention on Human Rights (“ECHR”).
It is unlawful for a public authority to act in a way which is incompatible with rights which arise under the ECHR (section 6(1) of the Human Rights Act 1998). The victim of such an alleged unlawful act may bring proceedings against the relevant public authority (section 7 of the 1998 Act).
Article 5 ECHR
Article 5 ECHR protects the right to liberty and security of the person, and holds that no-one shall be deprived of his liberty “save in accordance with a procedure prescribed by law”. Article 5(4) states that everyone who is deprived of his liberty by arrest or detention is entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. Article 5(5) states that everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.
The case of Zenati v Commissioner of Police of the Metropolis  EWCA Civ 80 is helpful in confirming that a person who has been deprived of liberty can bring a successful claim for damages for breach of Article 5, even where he cannot under the English Common Law either –
(a) bring a claim for False Imprisonment because his detention has been carried out pursuant to a warrant issued by a Judge; nor
(b) bring a claim in negligence because of the absence of an established duty of care (indeed the positive and repeated assertions of the Court that there is no duty of care owed in the circumstances – as per Hill and Elguzouli- Daf cited above)
As Lord Dyson said in his judgment in the Zenati case (para 50) “It is well established that where an imprisonment is effected through judicial proceedings, liability for false imprisonment virtually disappears”.
In Zenati, the Claimant had been detained on suspicion of having a forged passport, and was remanded in custody by the Magistrates Court. At the time of his arrest there was reasonable suspicion he had committed the offence, and the subsequent authorisation of his detention by the Court removed his right to sue for False Imprisonment even when the following events occurred – The National Document Fraud Unit (NDFU) established that the passport was in fact genuine on 19 January, but the Police failed to pass this information on to the CPS until 9 February (whereupon Mr Zenati was immediately released from custody).
Lord Dyson held that whilst Mr Zenati could not bring a claim for False Imprisonment (because the Court had authorised his detention, innocently unaware of the true state of the facts) he did have an arguable claim under ECHR 5.1(c) – that once it was known to the Police that lawful grounds for a person’s continued detention no longer exist, it is incumbent on them to obtain that person’s release as soon as possible – and also under ECHR 5.3 – that in failing to promptly convey the crucial evidence to the CPS and the Court, the Police were responsible for breaching Mr Zenati’s right to have his case investigated and processed with “special diligence” i.e without unnecessary delay.
In respect of the claim under 5.3 Lord Dyson even felt that Mr Zenati had an arguable claim relating to the period of his detention prior to 19 January, on the basis that the CPS were too slow to request a forensic examination of the passport between 10 – 31 December and/or that the Police were then too slow in referring the passport to the NDFU for examination between 31 December – 13 January.
As Lord Dyson concluded “In all the circumstances, I consider that it is arguable that the Claimant was in custody for an unreasonably long time as a result of the dilatory conduct of the CPS and the police”.
Interestingly, it appears that the result in Elguzouli-Daf may well have been different, had the Claimant in that case been able to present his case as a breach of the ECHR rather than just in negligence – but of course it predated the Human Rights Act 1998 which incorporated the ECHR into UK law.
Article 8 ECHR
Article 8 of the European Convention on Human Rights 1950 (“ECHR”) provides (emphasis added):
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others.
In this case, Mr K as well as being deprived of his liberty also of course had his right to free and full enjoyment of his family life infringed with by his detention overnight in Police custody and the onerous bail conditions then imposed upon him.
In the case of Keegan v UK (2007) 44 EHRR 33 the European Court of Human Rights held that a family’s Article 8 right had been infringed by a Police raid on their home because the Police had failed to make proper enquiries to establish if the person they were looking for still resided at that address (the Keegans had in fact moved in 6 months previous to the raid).
Once again, therefore ECHR rights were utilised to allow for a claim to proceed where, under the Common Law alone, there would have been no right to sue in negligence or for trespass (the latter because the search was carried out in accordance with a warrant of the court).
Arguably, if the NCA had taken reasonable precautions to check whether the warrant should have been re-certified in this case, the unjustified infringement of Mr K’s Article 8 rights could have been avoided.
In Mr. K’s case the fact that the European Arrest Warrant was erroneously re-certified meant that there were no legitimate extradition proceedings in place.
In the circumstances of Mr. K’s case, by failing to check (properly or at all) whether or not the warrant should in fact have been re-certified, the NCA failed to act with due diligence or to take reasonable precautions to ensure that Mr. K’s rights under Article 5 and 8 ECHR were not infringed.
Mr. K’s detention and the bail conditions he was subjected to were therefore in my opinion not in accordance with the law, and in breach of his rights as protected by Articles 5 and 8 ECHR.
In the circumstances, I was satisfied that Mr. K had a good claim. Fortunately, Mr. K had approached me just in time. I immediately issued protective proceedings because of the tight Human Rights limitation period (I year less 1 day). I then intimated a claim against the NCA who soon enough recognised the strength of Mr. K’s case and admitted liability for both False Imprisonment and breach of the ECHR. Following negotiations, I settled Mr. K’s claim for £11,500.00 plus costs and ensured settlement was on the basis that the NCA system was updated to reflect that any EAW issued against Mr. K had been discharged and that he was therefore no longer at risk of any wrongful arrest.
To conclude, yes you can sue the National Crime Agency but this case demonstrates what a complex area of the law this is, and the importance of obtaining the right specialist legal advice from an experienced practitioner such as myself from the outset. Mr K’s original solicitors had effectively been ‘scared off’ his case because they only half understood the law. They were correct to recognise the immunity from a negligence suit which applied to the NCA but they failed to see the strong alternative bases for his claim in the tort of False Imprisonment and under the Human Rights Act.
Thankfully, Mr K came to me just in time, and I was able to ensure that justice was done. If you feel you may have a claim against the National Crime Agency, please contact me for advice.