One of the most common offences for which people appear before the Magistrates Court is that known colloquially as “Drunk & Disorderly” i.e an offence contrary to Section 91 of the Criminal Justice Act 1967 –
Drunkenness in a public place.
(1)Any person who in any public place is guilty, while drunk, of disorderly behaviour … shall be liable on summary conviction to a fine not exceeding [level 3 on the standard scale].
(2)The foregoing subsection shall have effect instead of any corresponding provision contained in section 12 of the Licensing Act 1872, section 58 of the Metropolitan Police Act 1839, section 37 of the City of London Police Act 1839, and section 29 of the Town Police Clauses Act 1847 (being enactments which authorise the imposition of a short term of imprisonment or of a fine not exceeding £10 or both for the corresponding offence) and instead of any corresponding provision contained in any local Act.
(3)The Secretary of State may by order repeal any provision of a local Act which appears to him to be a provision corresponding to subsection (1) of this section or to impose a liability to imprisonment for an offence of drunkenness or of being incapable while drunk.
(4)In this section “public place” includes any highway and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise.
It is manifest that all elements of the offence must be proven for a conviction to be secured i.e-
- that the person is drunk AND
- is behaving in a ‘disorderly’ way AND
- the conduct occurs in a ‘public place’.
Equally, for an officer to make a lawful arrest for this offence he or she must have an objectively reasonable suspicion that all three parts of the offence are satisfied.
Whether a person is ‘drunk’ and whether their behaviour is ‘disorderly’ are notoriously woolly terms with a lack of precise definition, and will come down to the impression formed by the Court on the balance of the evidence – which may include video footage and is highly likely to include a statement by the arresting officer, and his or her colleagues, ticking off the following items of what we might call ‘pro-forma testimony’-
- the suspect’s “eyes were glazed”
- “his speech was slurred”
- “he was unsteady on his feet”
- “I could smell intoxicating liquor on his breath”
As a result of their experiences of front-line Policing, officers giving evidence in such cases frequently claim to be “experts in drunkenness”.
What is not normally fair game for debate or subjective opinion, however, is the requirement that the incident occurred in a ‘public place’. Although this can include private premises to which the public are permitted access, that definition does not include a private dwelling house or, indeed, the paths, concourses, corridors and access routes of a private housing estate or apartment block, to which access can only be gained through a locked door/ gateway with permission from the residents, on a case-by-case basis.
The landing of a block of flats, for example, to which access is via a secure door – with visitors having to request entry via an intercom or buzzer system – is not a public place as the general public have no right of entry onto the premises: only residents, their invited visitors and bona fide individuals such as tradesmen and postmen (who can be deemed to have the implied consent of the residents to enter).
A Police decision to overlook this key component of the offence renders them liable for false imprisonment even if the other two elements of the offence are arguably made out – although in such circumstances, the Police may argue that damages should be merely nominal (i.e minimal) on the basis that their failure is a ‘technicality’ as the person could have been legitimately arrested for an alternative offence, such as breach of the peace (which can be committed on private property, including in a person’s own home).
However, such a defence does not have to be accepted. I have recently settled a claim for a client who was arrested for allegedly being drunk and disorderly and who was detained overnight in Police custody. The arrest was prima facie unlawful because it was carried out on private property. Because of this, the Police admitted liability for false imprisonment and assault and battery at an early stage but argued (as above) that only nominal damages should apply. Accordingly, the Police offer of settlement was only £1,000 inclusive of legal costs. I am delighted to report that after negotiations and the threat of legal proceedings, the Police force in question have now agreed to settle my client’s claim for substantial damages plus legal costs, and also to issue a formal letter of apology.
If you have been arrested for drunk and disorderly behaviour in questionable circumstances, particularly if you suspect that the arrest did not take place in a public place, please contact me for expert advice and representation.