The Right to Refuse: Why Non co-operation with the Police is not Obstruction

One of the bastions of freedom under the law of England and Wales, is the right of an individual to refuse to answer a Police Officer’s demand for information save in certain limited circumstances (such as during a traffic stop, or if the individual is themselves under suspicion of a criminal offence). 

In particular, there is no requirement in law to co-operate with Officers by answering their questions and a simple refusal to answer those questions, or a denial of knowledge of the subject matter of the questions does not render the person themselves liable for “obstructing the investigation”. Actual obstruction would involve a positive and intentional attempt to deceive e.g by giving the officers wilfully false/ misleading information. This is the principle enshrined in the 1966 High Court judgment of Rice v Connolly, summarised as follows-

“Although every citizen had a moral or social duty to assist the police, there was no relevant legal duty to that effect in the circumstances

of the present case, and the appellant had been entitled to decline to answer the questions put to him and (prior to his arrest) to accompany

the Police officer on request to the Police box to establish identity; accordingly, in the circumstances, “wilful obstruction” by the appellant was

not established, although he had been obstructive, because no obstruction without lawful excuse had been established.”

In a Police Officer’s ideal world, no doubt all individuals would answer all questions put to them – whether there was reason to suspect them of criminal behaviour or not – and Officers do regularly push at the boundaries of this particular law by asking people to provide information without explaining that they do not have to respond. Examples of this behaviour are the regular requests made by officers to people stopped on the street to confirm their ‘arrest history’, or the draconian interrogations as to a person’s comings and goings which some individuals were subjected to by Officers exploiting (or misunderstanding the extent of) the recent Coronavirus legislation. 

This form of behaviour by Officers has similarities with the way Police will sometimes exploit their powers to pressure a person into providing information – such as the notorious tactic of ordering a detainee who is not co-operating with ‘check in’ at the Custody Desk to be taken to a cell and stripped naked – ostensibly for ‘safeguarding’ reasons, but often, in my experience, to punish that person for their refusal to answer questions, and thereby humiliate/ scare them into a more ‘co-operative frame of mind.’

Both of those tropes of unconstitutional Policing were, in my opinion, present in a case I handled on behalf of two young women, Evie and Claire. 

One evening in July 2020,  Evie was at home, putting her bins out, when she was approached by a woman who alleged that her sister had been taken into our client’s house by a man known as “Matthew”.  Evie knew that this was untrue and told the girl that she was mistaken.

A few minutes later, at approximately 22.00, uniformed Police Officers attended at Evie’s house. The Officers asked if “Matthew” was in the house.  Evie denied any knowledge of him

The Officers entered the house without invitation and ushered Evie and her friend Claire into the living room.  Two Officers continued to quiz both Evie and Claire as regards Matthew and his whereabouts, whilst other Officers searched the premises.

Evie maintained that no person called Matthew lived at the address.  The Officers repeatedly accused Evie of lying and threatened to arrest her for ‘obstructing a kidnap investigation’.  Evie maintained that she was telling the truth. The Officers likewise accused Claire of lying, and shamefully threatened to take her 8 month old son (who was present in the house) into Social Services care. 

A Sergeant then arrived at the house and after discussion directed that Evie and Claire be arrested for “obstruction”.

Evie and Claire were placed in handcuffs and then led out of the house to a Police vehicle (humiliatingly, Evie was only wearing her pyjamas). 

Both women were then transported to a local Police Station and presented to the Custody Sergeant.  

The circumstances of arrest were recorded on the Custody Record as follows;

“Obstruct a PC in execution of duty – patrols respond to a possible domestic at DP’s HA [Home Address]; female has been seen getting dragged into address by a new partner called ‘Matthew’.  Patrols have met the informant who states the female was dragged into the HA of the DP.  Patrols have knocked on and DP has answered the door; DP has been questioned re knowing a male called ‘Matthew’.  DP denies knowing a male called ‘Matthew’.  The severity of the situation has been explained to the DP who still denies knowing a male called ‘Matthew’.  PNC enquiries the suspect ‘Matthew’ has links to the address and links to the DP.  The original person who was dragged into address has not been traced.  DP. C & A no reply”.

The arrest necessity reason was given as “allow the prompt and effective investigation; Prevent the disappearance of the person; Protect a child or other vulnerable person.”

Upon review, the Custody Sergeant refused to authorise further detention given that “From the arrest circumstances presented to me I failed to see how the PC had been obstructed in her duty as she had just asked the DP a question and not got an answer.  The offence under consideration was Section 89 of the Police Act 1996 creates the offences of assaulting, resisting or wilfully obstructing a Constable, or a person assisting a Constable, whilst he/she is acting in the execution of his duty.

The key for this offence is the deliberate nature of the obstruction.

PNLD is clear and I quote, ‘The obstruction must be wilful.  The Defendant must intend to behave in such a way as to make it more difficult for the Constable to carry out their duties’.

For the act to be ‘wilful’ in this context it has to be deliberate.

I fail to see how the offence is made out as such DETENTION IS NOT AUTHORISED. 

The Custody Sergeant further recorded that “After the circumstances were given to myself the DP was placed in the glassroom to discuss the matter further with the Officer.

I explained the offence of Obstruct Police to the Officer who agreed with my rationale and stated that it was to do with the seriousness of the offence and the fact that they didn’t answer the questions of the Police.  OIC confirmed that there was no blood or signs of a disturbance at the premises.”  

In the circumstances and quite correctly, at 01.44, Evie and Claire were released from Custody. 

(For the avoidance of any doubt, the woman who had been reported missing was found safe and well in another location later that night, and no further action was taken).

I have recently settled the claims of Evie and Claire; although the Police Force in question denied liability for false imprisonment of my clients, as usual they let their money speak louder than their words. 

The “right to remain silent” is enshrined as one of the fundamental underpinnings of the rights of privacy and autonomy which a person in Police custody is entitled to; it is important that we do not let the general right of witnesses and members of the public to remain silent in the face of Police questions, should they so choose, be infringed or encroached upon by over-zealous or heavy-handed Policing, particularly in these times when personal liberty has been extraordinarily delineated by the public health emergency of the past year. Let us hope that any encroachments into our liberties in this regard/ increase in Police perceptions of the boundaries of their authority fully recede with the retreat of the virus and that cases such as Connolly v Rice, and claims such as those brought by Evie and Claire, act as continuing vaccines in our system, keeping our liberal democracy in boisterous good health. 

In this respect, I also point to the fact that for once both I and a Custody Sergeant seem to have been singing from the same hymn sheet, and that can only be a good sign. 

Names have been changed.

Author: iaingould

Actions against the police solicitor (lawyer) and blogger.

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