Police Exploitation of the Power of Arrest

Police officers are invested with many extra-ordinary powers vis- a- vis their fellow citizens, and no doubt the greatest of these is the power of arrest pursuant to a criminal investigation: to deprive a person of his or her liberty and make them into a prisoner for the purposes of Police interrogation.

Such a power, which would subject most of us to one of the most onerous and stressful situations we have ever experienced in our lives, must of course be exercised with the utmost discretion by Police officers, and only used when absolutely necessary, in accordance with Code G of the Police & Criminal Evidence Act (PACE). This is not least because the harm caused to a person by arrest does not end with their release from the Police station: the psychological effects can persist for months, if not years afterwards. Furthermore, in today’s digital and interconnected world of databases, even an entirely innocent person leaving Police custody without charge cannot simply and completely ‘shut the door’ on these events. The fact of their arrest, and their personal and biometric information will in many cases be retained by the Police indefinitely, an electronic ‘ghost in the machine’ which could potentially haunt a person of good character for the rest of their lives, showing up on future Police database checks – including by the Disclosure & Barring Service in respect of employment and by national and foreign Border control agencies in regards to travel. By way of example, an arrest for certain offences, even without conviction and on the flimsiest of grounds, can present major problems for a person from the UK wishing to enter the United States.

In light of the above, it is always very satisfying when I am able to use the civil justice system to set right for one of my clients a wrong committed against them by a Police Officer’s misuse – or even deliberate exploitation – of the power of arrest, arising from that Officer’s misunderstanding – or manipulation – of the “necessity to arrest” criteria.

The most recent such case I have concluded, was that of my client Paul Peters, who was successful in his action against Merseyside Police following a multi-day Trial at Liverpool County Court, which concluded on 8 January.

Paul is a man of entirely good character and a self-employed plumber. In June 2013 he attended the home of a woman I shall identify as AM in order to carry out plumbing works, along with his son, who worked for him. During this work, it was necessary for him to move a wardrobe; nothing untoward occurred.

Subsequently, in mid-July 2013, (apparently 2 weeks after noticing that the cash was missing) AM reported missing money to the police. She gave a statement, in which she said the cash in question (£10,000) was being stored in the bottom of the wardrobe which Paul and his son had moved. However, the statement also made it clear that AM had not in fact seen/ checked on the money since January 2013 and that in the intervening months, before Paul came to work for her, she had numerous other workmen in the house, some of whom had been left un-supervised whilst she was away from the property.

DC Mitchell of Merseyside Police was assigned to lead the investigation and went to speak to AM. AM pointed a finger of suspicion at Paul and his son, though it seemed her only real basis for this was that she felt that Paul had been “indignant” when challenged about whether he had taken the money. Of course, most people wrongly accused of theft would very likely respond in the same way!

DC Mitchell recorded the key problem in the case: the money could have gone missing at any point between January and July. He also apparently questioned whether the money had gone missing at all, and this was part of an insurance scam on the part of AM; or whether her partner, who had access to the house, might have taken it. Despite this, as the investigation continued, DC Mitchell at no point chose to question AM’s partner, even when it appeared that he was taking steps to avoid coming into contact with the Officer.

As noted above, our client and his son were only two in a long ‘roster’ of potential suspects in the form of the dozens of workmen who had been in and out of the house during the half year in question, since the money had last been accounted for. I will, however, pause here to note that of all the workmen who had visited the house, Paul and his son were the only ones who were Black.

DC Mitchell made the following entries in the investigation log –

  • 14/7/13  She has confirmed that she has withdrawn £10K from her bank and placed it in her child’s wardrobe for safe keeping whilst having work done on the property. A number of trades have been in the house both whilst she was in attendance and also not at home. She last saw the cash at the start of Jan 2013. She has only realised it was gone after she had gone into the room and checked the wardrobe and found the cash has gone. With not seeing the cash herself since Jan it cannot be confirmed who has taken the money that was kept in the wardrobe.
  • 5/8/13 Research is required on both Peters. It was my intention to complete this research over the weekend and then be in a position to make a decision about a warrant.
  • 5/8/13  I have considered financial investigations in relation to … Paul Peters and his son…the Criminal Assets Team…They have advised that a Judges Production Order  (JPO). May be a viable means of obtaining financial information… Based on the results of my intelligence research a warrant to search the home address of Peters for the cash in question and anything associated with the case (receipt, red money bands) may be sought.
  • 12/8/13 Prior to my leave I was unable to complete my financial checks with the financial intelligence unit. Information from them is required prior to any JPO. Should they be unable to provide me with the information I will consider making a visit to the home address of … Paul Peters and asking him for the information directly. I am considering this actions carefully as it will alert him to the fact that I suspect that he or his son is responsible for the theft. If one or other of them is responsible, they will have ample time to move or hide the money. Without the information however it may be unlikely that a warrant will be granted.
  • 22/8/13 I have been unable to consult with the financial investigators so far over this case.
  • 27/8/13 The information at this time is not sufficient to apply for a warrant [against PETERS].
  • 3/9/13 I am now looking at completing a Judges Production Order and have sought advice in respect of form completion…
  • 13/9/13 I have been unable to progress this investigation as I have been dealing with[REDACTED]
  • 17/9/13 Unable to progress this investigation today, as I have been tasked with[REDACTED]
  • 19/9/13 Call from AM – I have also advised her…that after looking at the information held about the suspects, there is not enough to proceed at this time against Paul PETERS…there is not enough in PETERS’ background to support the notion that he has taken the money. [A further note on the same day indicates that DC Mitchell had now received and was reviewing the financial accounts of AM and her partner – to consider any wrongdoing on their part]
  • 20/9/13 I am unable to progress this case further today as I have been tasked with [REDACTED].
  • 25/9/13 Unable to progress this matter further today as dealing[REDACTED]
  • 28/9/13 I have been unable to progress this matter today as I have been tasked with prisoner [REDACTED]
  • 8/10/13 PETERS was arrested this morning and his house searched. Nothing of evidential value was found.

Paul was understandably shocked and surprised by his arrest, which DC Mitchell stated in official documentation was necessary “to prevent loss or damage to property” – notwithstanding the obvious fact that if Paul had taken the money this event occurred over 3 months previously.

Paul was bailed to return to the station in December 2013, but when he presented himself there was informed that he was (unsurprisingly) being given an outcome of ‘No Further Action’.

Paul was incensed by what had been done to him, and made a complaint to his MP and to the Professional Standards Department of Merseyside Police – the latter of which was, predictably, rejected by PSD who went out of their way to support and excuse the actions of DC Mitchell and the “necessity” of Paul’s arrest.

The chronology of the investigation, as summarised above, leads to the conclusion, in my firm opinion, that DC Mitchell – having run out of ‘leads’ and now contrary to his own earlier analysis of the evidence (which was that there simply wasn’t sufficient evidence to suspect Paul) – acted on 8 October to arrest the Paul simply in order to kick some life into an investigation that was apparently drifting. He may well have felt under pressure to ‘do something’.

DC Mitchell appeared to have unreasonably abandoned his earlier attempts to progress the matter without arresting Paul, which he had previously accepted was not justified. The only thing that happened between 19 September and the date of Paul’s arrest was that financial information relating to the complainant AM and her partner had been received; logically this cannot have changed the grounds or necessity for arresting Paul Peters and notably there was no attempt to obtain a search warrant of Paul’s address (which requires authorisation by a Magistrate). Presumably this was because DC Mitchell’s view was really still that which he had given in August – that it was unlikely a search warrant would be granted given the paucity of evidence/ grounds for suspicion. Therefore, this was, in my opinion, an arrest which was attempted in order to obtain grounds of suspicion rather than vice versa.

The information available to DC Mitchell was in his own words not sufficient to apply for a warrant. How then did it generate reasonable suspicion that Paul was guilty of theft? In reality it appears that DC Mitchell, realising that he hadn’t enough to apply for a search warrant of Paul’s premises, decided to overcome, or rather circumvent, that legal obstacle by contriving an arrest in order to procure entry to the Paul’s premises. This is precisely the tactic which was deprecated by Eady J in Hanningfield v The Chief Constable of Essex Police EWHC [2013].

Note the following statement in the written response provided by DC Mitchell in early 2014 to the initial complaint brought by Paul – Necessity criterion was to secure and preserve evidence and protect property (the cash). The arrest also enabled a search of the premises under section 32 of PACE.

A wish to search premises under section 32 PACE 1984 is not a statutory justification for the necessity of arrest. At all times there was against Paul only a tenuous deduction made from incomplete information. At most Paul should have been offered a voluntary Police interview. There was no basis for an arrest and detention and the reasons stated on the custody record for the necessity of arrest simply do not bear scrutiny.

When I presented a civil claim to Merseyside Police on behalf of Paul, it was met not with humility or apology but by a very combative attitude from the Force, and in particular DC Mitchell, who appeared to be under the impression that my firm should be reported to the Solicitors Regulation Authority for having the temerity to question his actions.

DC Mitchell and his superiors attempted to justify his arrest of Paul in October 2013 on the basis that it was necessary to protect/ preserve the missing cash…Despite the fact, acknowledged in the following words by DC Mitchell, that in July 2013 –

“Since there was a two week delay in reporting the cash missing, I concluded there was no immediate need to search the homes of any potential suspects. Had the report being taken on the day of the cash being found missing, then it would have been imperative to conduct searches immediately to try to find the cash.”

How can this square at all with the Officer’s subsequent assertion that at a point in time over 3 months later, it somehow once again became imperative to conduct searches to find the cash?

DC Mitchell stated that his reasoning was that the ‘suspect’ would now feel safe enough to spend the money… This is somewhat obscure and bizarre reasoning to say the least, and DC Mitchell’s assertion that the money was now at risk at 3 months after the alleged event but was not, presumably, at risk 2 months after the event, and equally was going to have disappeared by 4 months after the event, appears to be an entirely random and arbitrary assertion, entirely disconnected from either common sense or objective or specific facts about this case.

Furthermore, it would appear to directly contradict the reason the Officer gave (above) for not feeling it was necessary to enter the premises of the suspect when the crime was first reported 2 weeks after the alleged theft, presumably because it was by then already too late to ‘protect and preserve’ the money as it would have been spent or hidden elsewhere. DC Mitchell was in effect arguing that he thought all along that the money would be in the possession of the suspect (Paul), and he was content to leave it there until such a time as he decided (apparently October, over 3 months after the event) that it was now suddenly at risk of being spent.

At the conclusion of the Trial on 8 January, in which I instructed Mr Nick Stanage of Doughty Street Chambers, one of the country’s leading actions-against-the-police barristers to act on behalf of Paul, His Honour Judge Cadwallader accepted our arguments in regards to the glaring obvious facts set out above regarding the lack of any necessity to arrest and Judgment was granted in favour of Paul for false imprisonment, and he was awarded £8,000 compensation. He will now also be able to use this judgment to assist him in getting Merseyside Police to expunge all records of his wrongful arrest so that it will not besmirch his character in the future or hamper his ability to work and travel where he choses. The importance of this victory goes far beyond the counting of ‘pounds and pence’.

Indeed, it was only half way through the Police barrister’s closing speech that Merseyside Police finally conceded that they now accepted that Paul had no involvement whatsoever with the alleged theft. This was in marked contrast to their response to his complaint and his claim over the preceding 6 years, when not only were the Police offering neither an apology nor even an acknowledgement of Paul’s innocence, but DC Mitchell (in a 2014 statement made in response to Paul’s complaint) actually “doubled-down” by insisting that he personally believed Paul was a thief – despite having absolutely no evidence to support this. Neither the Officer nor his Force showed any humility or contrition until – thanks to Paul’s courageous decision to see this case through to Trial despite all the financial and emotional risks entailed – they were finally brought to book in front of a Judge.

In my opinion, DC Mitchell and those in the Force who clearly supported him in their denial of both Paul’s legitimate complaint and legitimate claim were ‘clutching at straws’ to justify Paul’s arrest…but that did not prevent them using those straws to contest the claim for over 6 years and spend tens of thousands of pounds of taxpayer’s money in doing so.

Holding DC Mitchell and his enablers within Merseyside Police to account over this misuse of their powers against Paul  was absolutely necessary in order not only to enable Paul to achieve a personal sense of vindication, and restore his damaged faith in our law & justice system, but also to teach the Police that we will not as a society accept or tolerate abuses of authority – whether careless, reckless or deliberate.

Author: iaingould

Actions against the police solicitor (lawyer) and blogger.

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