The article explains that even if an arrest is lawful at the outset, continued detention in police custody must remain justified under the Police and Criminal Evidence Act 1984 (PACE) and can become unlawful if someone is held longer than necessary.
It recounts the case of “David,” who was arrested after his wife was reported missing. Although the court accepted that the officer had a reasonable suspicion when making the arrest, David should have been released once evidence showed he was not involved and his wife was found safe.
Instead, he remained in custody for several additional hours while police delayed his release, leading the court to award damages for unlawful detention and reaffirm that police must release detainees as soon as the legal grounds for holding them disappear.
Content Authenticity Statement
100% of this week’s blog post was generated by me, the human.
Police Powers vs Personal Liberty: When the Law Protects You After Arrest
The Police are given great powers by the State to use force and incarceration upon other citizens in the furtherance of the law; but at the same time, the law jealously guards our individual liberty with a variety of tests designed to ensure we are either not arrested in the first place or, if we are, released as soon as possible. If the Police break these laws, then they will be held liable to pay damages.
Once a person is arrested, their detention must be kept under regular review and they must be released as soon as that detention is no longer necessary because its purpose has been served (eg a threat has passed, or the investigation has been sufficiently progressed). My blog post this week will address a case in which my client’s arrest was held at trial to be lawful – but I was, nevertheless, able to win substantial damages for him, because he was held in custody for hours longer than he should have been.
Freedom is the imperative in such matters, and the Courts will not allow the Police to be careless with our liberty: every minute counts. This was the principle enunciated by Lord Donaldson in the case of Mercer v Chief Constable of Lancashire CA 1991 –
“What may originally have been a lawful detention may become unlawful because of its duration or of a failure to comply with the complex provisions of the Police and Criminal Evidence Act 1984.”
Case Study of Unlawful Police Detention After a Lawful Arrest
My client David is a man of good character who lives with mental health issues, including depression; his wife, Claire, also has mental health problems, and has had a history of disappearing for periods of time, of which the Police were aware, as a number of “MFH” or “Missing From Home” reports had been filed for Claire, who each time returned safely of her own accord.
At the time in question, David and Claire had a marital disagreement which resulted in Claire going missing from their home in Preston for a period of hours; owing to her daughter’s vulnerable mental state, Claire’s mother called the Police.
Claire had stayed the previous night with her mother, who had brought her home, then left her for about an hour – but when she returned Claire was not there. David was not at home at the time as he had gone that morning to his own mother’s house in Chester and taken the couple’s cat. Claire’s mother reported her missing just before 8pm on the day in question. PC Patel of Lancashire Constabulary first attended at the home at around 9:30pm and spoke with Claire’s mother. At around 10pm, Claire’s mother contacted David to tell him that Claire had disappeared, so he made his way home with the cat. At around 11:40pm, shortly after David arrived home, PC Patel attended for a second time. He asked David questions, to which David answered that he did not know where Claire was. PC Patel started to accuse David of having something to do with Claire’s disappearance, at which point David became upset and decided to leave. As David was leaving the room, PC Patel grabbed hold of him and applied a handcuff to stop him from leaving. There was a struggle, during which PC Patel used his PAVA spray.
Whilst he had been talking to David, PC Patel noted some blood on David’s top, albeit not very much, and also some scratches on his arm. The officer felt that David was behaving suspiciously in not answering his questions, and became convinced that David had harmed Claire in some way – and a struggle then broke out when the officer, as far as David was concerned inexplicably, attempted to arrest him.
Having been sprayed with PAVA gas, punched in the face and handcuffed, David was taken into custody at Preston Police Station.
He was confused and understandably devastated – he had not harmed Claire, but had now been quite significantly harmed himself, and was being accused of hurting her.
From one crisis – a marital argument and the departure of his wife – David had now been pitched headfirst into another. In a moment of terror he felt he was, effectively, being accused of murdering Claire.
At the Police Station, the Custody Sergeant explained to David that he was being detained to “protect a vulnerable person” and to allow the “prompt and effective” investigation of a suspected offence of Actual Bodily Harm against Claire.
What Actually Happened: The Missing Person Investigation Explained
Claire was physically safe and well, but, presumably because of her depression, had failed to tell either David or her mother where she had gone.
David, during the visit to his own mother’s house earlier that day, had to stop his mother’s dog from attacking his pet cat, and had been scratched by one of the animals – hence his minor injuries and the specks of blood on his clothes.
Sadly, the investigating officer, on coming to the couple’s home put two and two together – and got “999”.
Reasonable Suspicion and Missing Person Cases: When Can Police Arrest?
“Detained for the Disappearance of our MISPER” : Was This Deemed Enough to Amount to Reasonable Suspicion of ABH?
David was now being detained because the Police suspected foul play in the disappearance of Claire – who was currently, in Police jargon, a MISPER i.e a “MISsing PERson.”
Whilst in Police Custody, David gave a full comment interview (without a solicitor present) which concluded at 1:35am. By 3:15am the police had established that at the time Claire went missing, David’s phone was in Cheshire, and his mother had given a consistent account of their movements together that day. Claire was found alive and well at 12:53pm, having spent the night by the canal, and at 1.37pm David was seen by a Liaison & Diversion (mental health) practitioner, who gave a positive report as to his state of mind. Nonetheless, David was not actually released until 7:15pm. The police relied upon a purported need to conduct a Fitness to Release (FTR) assessment of David, citing mental health concerns, but hours ticked by with little or nothing having been done in this regard.
At trial, the Judge concluded that David’s arrest was based on the honest and reasonable, albeit mistaken, suspicion of PC Patel – however, David’s claim was still successful because we were able to convince the Court that David had been kept under arrest for too long, and that Lancashire Police had broken the rules that govern detention in Police Custody.
Police Detention Time Limits: The Legal Rules Under Section 34 PACE
The Ticking of the Custody Clock: The Rules Limiting Police Detention under Section 34 of PACE
Once a person is arrested and brought to the police station, the police must prove the lawfulness of their continued detention not by reference to the belief of the arresting officer, but to the custody sergeant’s ongoing duty of assessment. Under Section 34(2) of the Police & Criminal Evidence Act 1984, it is the duty of the custody officer to order a person’s immediate release from custody, if the officer becomes aware that the grounds of detention have ceased to apply and he is not aware of any other grounds to justify continued detention.
PACE Code of Practice C (1.1) also provides that all persons in custody must be dealt with expeditiously, and released as soon as the need for detention no longer applies.
Can Police Delay Release for a “Fitness to Release” Assessment?
There is no provision that a person may be detained for longer than is otherwise necessary for the purpose of a “fitness to release” assessment. Indeed, The College of Policing guidelines on “Detention and Custody Risk Assessment” indicate there is no such power of detention.
Under the sub-heading ‘Release from custody’, the guidance reads –
‘The custody officer should complete a pre-release risk assessment. They should not leave this until the point of release. Instead, it should be an ongoing process throughout detention and be concluded at the point of release. Custody officers should refer to all existing risk assessment information for the detainee. They should also personally speak to all detainees prior to release and consider the risk of exploitation and/or victimisation of the detainee. The custody officer then needs to decide what action, if any, is appropriate to support vulnerable detainees upon release.’
Under the further sub-heading ‘Risk of self-harm and suicide after release’, the guidance continues –
‘The custody officer has no explicit powers to detain a high-risk detainee before/without charge once their detention can no longer be authorised, in accordance with Part 4 of PACE or any other lawful power. They may consider using section 135 or 136 of the Mental Health Act 1983 (if the legislative criteria is met at point of release).’
In David’s case, there was no suggestion whatsoever that any Mental Health Act powers were being invoked to authorise his prolonged detention.
Instead, he was treated like a second-class citizen; left to the anguish of incarceration whilst the Police prevaricated, pushing pens and shuffling papers, despite the fact that Claire was now known to be unharmed, and the investigation was over.
Unlawful Detention After Arrest: Court Outcome and Compensation
Outcome and Summary: An Innocent Man Wins Damages After Being Lawfully Arrested, But Wrongly Detained
In summary; if you are arrested, the police must prove not only that the initial arrest was lawful but also that the detention continued to remain lawful throughout, minute by minute, hour by hour (Mercer v Chief Constable of Lancashire CA 1991).
In David’s case, the Court ultimately found that he should have been released at the latest at 1.45pm, and hence that he had suffered over five hours of unlawful detention, every second of which was another moment of torment for an innocent man who just wanted to get back to the home to which his wife had now safely returned.
I was able to win for David damages of almost £2,000 plus his legal costs, and, far more importantly for him, a sense of justice. Wrongly accused, David’s right to liberty had been cheapened by the Police’s prolonged, agonising incarceration of him. The money that we won helped to show that his rights counted – and gave him renewed faith in our legal system.
The names of my client and his wife have been changed.
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Contact the Expert Police Misconduct Solicitor
Iain Gould is a solicitor specialising in complaints, claims and civil actions against the Police. With over 30 years of experience and a national reputation, he has successfully sued all 43 police forces in England and Wales challenging abuse of power and securing rightful compensation.
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