Can police officers detain you whilst deciding whether or not to arrest you?

The answer to this question is simple: unless they are exercising statutorily defined stop-and-search powers, the Police are not allowed to detain you whilst deciding whether to arrest you or not. Rather outrageously however, officers often try to give people the impression that they do have such a power (which does not in fact exist either under statute or in the common law).

One such scenario befell my client Alan Sanditon in a busy Trafalgar Square in early March 2018. The whole incident was caught in a great deal of detail by the body cameras of the two rather hapless Metropolitan Police officers who accosted Alan whilst he was taking photographs in that iconic location.

What subsequently transpired, was frankly nothing less than a case of the Police detaining Alan whilst trying to find a reason to arrest him.

As the two officers, who I shall call PC Hurley and PC Jeremy stopped Alan, he had been taking photos on his camera of the ‘crowd scenes’ around him, which as usual at that location included Lord Nelson on his column, tourists and political/ oddball campaigners; the full flavour of human experience we might say!

If it needs spelling out, there is no law preventing the taking of pictures in public, unless so doing is making a specific individual feel harassed. Here there was no complaint by any of the subjects of Alan’s photos but rather one of the security guards perched at the top of the steps to the National Gallery, who in the words of the officers had reported “a man taking a lot of pictures for about an hour.”

Alan understandably felt a little uneasy being asked intrusive questions about matters that were his own business, and knowing he had done nothing wrong, sought to disengage from the two officers and walk away. He was under no obligation to talk to the officers, as they evidently had no basis to detain him either on suspicion of committing an offence, or for the purposes of a stop/search, but as Alan went to put his camera away and walk away, PCs Hurley and Jeremy immediately seized hold of him and despite his pleas, immediately handcuffed him and forced him down into a humiliating kneeling position directly in front of the Gallery (causing a cut to Alan’s head in the process). Handcuffed behind his back, Alan was now the subject of photographs being taken by bystanders, although the officers seemed supremely unconcerned by this.

Instead, the officers, evidently having decided that Alan was “suspicious”, though not knowing what they suspected him of (other than “looking very nervous” – which was understandable in the circumstances), now started to scratch their heads as to what exactly they were detaining him for; whilst this farcical process was undertaken, the officers illegally handled Alan’s possessions – including his camera – and kept Alan prisoner, in handcuffs, in full public view.

From the conversation recorded on their body cameras, it was clear that the officers evidently felt it was wrong of Alan to have taken photographs of ‘females’, although they were uncertain as to in what way this was actually illegal (a rather important point, you might think, before they detain someone, particularly in such a violent fashion).

The officers debated between themselves whether they were allowed to look through the photos on Alan’s camera without having arrested him (they weren’t) and admitted that there was no reason to suspect that Alan had been taking ‘indecent’ photographs. In PC Jeremy’s words “Is there an offence, ‘taking pictures of women’? I don’t know if they’re indecent or not, I shouldn’t think so…”

Nevertheless, Alan’s humiliating and painful detention continued. The officers debated whether Alan could be guilty of ‘voyeurism’ and decided to look up the definition of this online to satisfy their curiosity; of course, such an offence relates to the observation or recording of private acts for sexual gratification, and was totally inapplicable to the situation at hand.

Continuing to draw a blank on a reason to arrest Alan (and hence his unlawful detention continuing) the officers then decided to “phone a friend” in the form a speculative call to a colleague in CID to see if he could give them any suggestions. The conversation began like this: “Hello CID, PC Jeremy here from Team…We are just at a call outside the National Gallery and we are all a little bit stuck for offences…” (Those of us who remember the classic game show ‘Who Wants to be a Millionaire’ might wonder why PC Jeremy didn’t get Chris Tarrant to make this call for him…)

With CID unable to assist, the officers then tried to dredge up a reason to start fishing through the images on Alan’s camera; they knew they had no power to investigate his private property (yet) because they had been unable to arrest him. Speculating aloud, one of the officers bemoaned the fact that there was “no aspect of Terrorism” as otherwise they could have searched his camera (or so they presumed) under S.43 of the Terrorism Act.

One of the most unusual features of this case, is that contrary to the normal course of events – where Police Officers do not hesitate to loudly and clearly announce what offence a person is being accused of (even if many of my clients will testify to the falsity of those accusations!) – this was a situation, entirely evidenced by body camera recording, in which 27 minutes after they had taken Alan prisoner and handcuffed him, all the officers had done was to list all the reasons why they couldn’t arrest him for various offences!

Despite having discussed with his colleague the illegality of looking at the photographs on Alan’s camera, PC Jeremy now decided that was exactly what he was going to do, and started to cycle through what he described as ‘hundreds’ of images on the camera, describing them to PC Hurley (this was entirely unlawful, and a trespass to Alan’s property – but it is of note that none of the photographs were claimed by the officer during this exercise to be of a ‘voyeuristic’ nature). Whilst he was doing this, a more senior officer (believed to be a Sergeant) had arrived at the scene and the Sergeant specifically challenged PC Jeremy with the words “Dave…you’re not going through stuff are you?”  – which PC Jeremy falsely denied.

Finally, some 30 minutes after Alan had been initially ‘detained’ the Sergeant who had attended at the scene informed PC Hurley and PC Jeremy that they could now arrest Alan on suspicion of possession of indecent images of children. Where on Earth had this ‘suspicion’, which was completely untrue, come from? It appears that one of the many officers now present ‘looking for an offence’ had had a conversation with the security guard who had initially phoned the Police, and that man was now apparently suggesting that Alan’s photography of the crowds could have included ‘up skirt’ images of a young girl. The allegation was weak even to begin with, as the security guard wasn’t suggesting that Alan had been close to the unknown girl, but was somehow suggesting he was taking ‘up skirt’ photos from several dozen yards away; however the Police evidently seized upon this vague suggestion as an attempt to retrospectively justify PC Hurley and PC Jeremy’s unlawful actions.

Of course, PC Jeremy would have had every reason to know this new allegation wasn’t true – he had just been looking through Alan’s photographs and would have seen any ‘up skirt’ images that existed – but I suppose he found himself in somewhat of a ‘bind’ as he knew he shouldn’t have being doing that prior to arrest. Therefore, rather than come clean, and get himself into trouble, PC Jeremy evidently decided to keep quiet and instead now formally arrested Alan “on suspicion of taking indecent images of children”, to which an utterly appalled Alan could only reply “Ridiculous!”.

Alan was absolutely shocked, and quickly became very concerned as the implications of what he was being accused of began to sink in – he knew that even if you are entirely innocent, even an arrest (without charge) for this type of offence can affect the rest of your life.

So finally, some 30 minutes after he had initially been assaulted and handcuffed, Alan was placed under arrest and led away to a Police vehicle which transported him to a further 12 hours of custody at Westminster Police Station.

As if in order to further demonstrate the bad faith on the part of the Police towards Alan i.e knowing that their officers had unlawfully laid hands on him in the first place, they were now determined to ‘get’ him for something, Alan was re-arrested several hours into his detention for “GBH” upon PC Hurley. Once again, this was a totally trumped up allegation; it arose from the fact that as the officers were handcuffing Alan and taking him to the ground in Trafalgar Square, Alan had inadvertently landed on PC Hurley’s arm. The officer had subsequently gone to hospital and had been advised he had suffered a fracture. It appears that on this information being relayed to the Station, the powers that be decided to accuse Alan of GBH; although after PC Hurley came out of hospital he informed his colleagues that he fully accepted the injury was an accident, and not as a result of any assault upon him by Alan. Sadly, this sorry sequence of events just demonstrates how desperate the Police were becoming to find an offence to ‘pin’ on Alan, as a smokescreen to hide, or mitigate, their own officers unlawful acts towards him.

Ultimately, Alan was not, of course, charged with any offence, and his good character was upheld – although for several months he had to live with the possibility of these charges, no matter how bogus, being brought against him. Alan was particularly distressed at his risk of being wrongly labelled a sex offender.

Fortunately, justice was eventually done, and the court proceedings which I subsequently brought on behalf of Alan for false imprisonment and assault and battery, have recently been settled by the Metropolitan Police for substantial damages. Alan is now also using this settlement as a basis to seek deletion of the records of his arrest; which is quite correct – Alan should never have been arrested on this grossly offensive and frankly ‘manufactured’ charge, stemming from the arrogance, aggression and/or incompetence of the original pair of officers, and all such references to this event on the Police National Computer should rightly be expunged.

Whilst this was a good outcome for Alan, I remain concerned, when considering other similar cases I have handled – particularly involving the Metropolitan Police – that too many officers either don’t understand the limits of their own powers, and believe that a person can be detained whilst grounds for arrest are ‘investigated’, or else are wilfully and regularly exceeding those limits and taking advantage of the fact that members of the public are generally unaware of the difference between being told they are ‘being detained’ (which is prima facie unlawful unless formal arrest and/or stop search powers are clearly invoked by the Police) and being arrested. This is an abuse of power by the Police which needs to be highlighted when it occurs, and each case of it pursued to the full extent of the redress that the civil law can provide; or else we might fall into a dangerous and unconstitutional situation wherein Police detention powers, rising like a river in flood, overflow their carefully designated boundaries – and never go back.

Author: iaingould

Actions against the police solicitor (lawyer) and blogger.

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