How serious does a ‘domestic’ incident have to be to justify arrest?

Can a Breach of the Peace be committed by a person when they are within the boundaries of their own home?  And what powers do the Police have to enter your home under Section 17 of the Police and Criminal Evidence Act (PACE) following a report of a “domestic”?  These are all questions which I address in my blog today, by reference to a case I have recently concluded. 

According to an article in Psychology Today (posted on-line 04/02/18), arguing can be beneficial to relationships in that such conflict can “facilitate talk and awareness of another’s perspective”.  But can an argument in the domestic realm between partners qualify as ‘abuse’ and justify police intervention and arrest? 

In the modern world, Police Officers are taught that they have a duty to take positive action when dealing with domestic abuse incidents to ensure the safety of the victim and any children. 

More often than not, the Police will be responding to a call from an alleged victim or from a neighbour.  Their primary role, to begin with, is to investigate and to assist in this respect, the officers can rely upon Section 17 (i)(e) of PACE which allows them to enter premises (within certain constraints)… for the purpose “of saving life or limb or preventing serious damage to property”. 

This particular section of PACE was judicially scrutinized in the case of Syed v DPP 2010 where it was held that officers seeking to effect entry under Section 17 must be concerned that there is a real threat to life or limb, a fear that something has happened or may happen which would involve serious injury to a person.  A concern for welfare generally was not sufficient to enter premises, it was simply too low a threshold. 

I have recently concluded a claim on behalf of Robert of Northamptonshire.  At the time of the incident, he and his wife had been married for 2 years.  One evening, they went out for a drink.  Robert had approximately 3 pints of beer and his wife had drunk wine.  They returned home at about 9pm.  They had a minor argument about the fact that he wanted to stay for a further drink and she did not.  The row lasted a few minutes but they both calmed down and Robert’s wife went upstairs to get changed for bed.  After a short while, there was a knock at the door. Robert went to answer. 

Robert’s neighbour had heard the argument and called the Police, and two male officers, PC A and PC B responded to the call.  

What happened next was captured by one of the officer’s body cameras. 

On arrival, the house was quiet and when the front door opened, there was no noise from within and Robert was calm.  

The officers asked if they could enter. Robert asked why. The officers explained that a report had been received which they needed to follow-up on, specifically that they needed to check on Robert’s welfare and whoever else was in the house. Robert advised that he had a row with his wife but the officers were not welcome to come in. 

In response, PC A advised that the officers would be entering under Section 17 of PACE ‘to check on welfare of people’ and with that, crossed the threshold into the house. 

The act of Police entry clearly agitates Robert who begins to shout and swear that the Police have no right to enter. 

PC A advises that he and his colleague are entering under Section 17 and that should Robert continue, he will be arrested for Breach of the Peace.  

Robert continues to shout and swear and argues with the officer maintaining that he cannot be arrested for Breach of the Peace in his own home (note that this was actually a misunderstanding of the law by Robert as I will explain below). In light of his behaviour, the officers decide to handcuff Robert ‘for officer safety’. Of interest, PC A radios to Force Control and states that although a male at the address has been placed in handcuffs due to his aggressive behaviour, he is not under arrest. 

Meantime, hearing the commotion, Robert’s wife came downstairs. PC B tries to speak to Robert’s wife to see if she was ok but Robert continues to argue with the officers. After a few minutes, PC A advises Robert that he is now under arrest to prevent a further Breach of the Peace and he is escorted from the house to a patrol car outside. 

Understandably, Robert’s wife is upset. She is asked to explain what had happened, she explained that she and Robert had had a verbal argument only. It is clear that no offence had been committed before the arrival of the officers. 

Robert remained highly agitated and a decision was made to transport him to his nearest Police Station where he was kept in overnight and released without charge the next day. 

As was made clear by the decision in Syed, the officers’ entry into Robert’s home was unlawful.  On several occasions, the officers asserted that entry was necessary to “check on the welfare” of the occupants. That was simply too low a threshold to allow them to force entry under Section 17 of PACE. 

Of course, it was the officers’ decision to enter the home that upset Robert and caused him to shout, swear and argue and ultimately caused the officers to handcuff him and to then arrest him for Breach of the Peace.  

But even then did Robert’s behaviour warrant arrest? Breach of the Peace has been defined as having occurred “whenever harm was actually done or was likely to be done to a person, or in his presence to his property, or a person was put in fear of being so harmed through an assault, affray, riot unlawful assembly or other disturbance” per the case of R v Howell [1982] QB416.  Here, there was no violence or threat of violence.  (Note, however, that there is nothing the definition that says that a Breach of the Peace cannot happen in a private home.) 

When I reviewed the facts of Robert’s case, it was self-evident that the officers’ entry into Robert’s home was unlawful, and thereby constituted a trespass, as was his subsequent arrest (either because it arose specifically because of the officers’ unlawful entry or because his behaviour did not constitute a Breach of the Peace). 

Following an investigation by Northamptonshire Police, I am pleased to report that they agreed with my analysis. Although they quickly admitted liability, it took protracted negotiations before they agreed to pay Robert £9000 plus his legal costs (after having initially offered him only £1800 compensation). 

Robert was a little apprehensive when first considering pursuing a claim.  He felt that he had let himself down when reacting to the officers’ entry into his home. I don’t agree. Robert was asserting an ancient right; that an Englishman’s home is his castle and that he is entitled to protect it and all those within.  Our rights of privacy in our homes are not to be tramped over lightly, and a law (Section 17 of PACE) designed for real life-threatening emergencies  should not be allowed to become watered down through common usage so that it becomes a general power for Police to enter a home following nothing more than an argument between the occupants.  Robert was quite right to fight – and win – this case.

Author: iaingould

Actions against the police solicitor (lawyer) and blogger.

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