How Long Can the Police Detain You? Part Two

In my last blog, I wrote about how the police may become liable for false imprisonment if they do not comply with the detailed rules set out in the Police and Criminal Evidence Act 1984  and specifically fail to comply with Section 37, i.e. the grounds upon which a suspect is held.

Another basis for how a perfectly lawful detention may become unlawful is where statutory reviews of detention are not undertaken.

PACE requires that a suspect’s detention should be reviewed at periodic intervals and consideration given as to whether continued detention is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain evidence by questioning him.  If the review is not properly carried out, then the person’s continued detention from the time of the review will become unlawful.  This is the case even if the police can argue that if the review had been carried out, further detention would have been authorised.

I recently had cause to argue this point in a claim against Avon & Somerset Constabulary for my client John Smith.  Mr. Smith was arrested for the theft of a bag belonging to his ex-girlfriend.  Although I am satisfied that he was wholly innocent, the Police had justifiable grounds to arrest and investigate based on reasonable suspicion.

The alleged theft occurred in Bath and John’s ex-girlfriend reported the incident to Avon & Somerset Constabulary.

By the time of his arrest, John was living at his parent’s house and at 21.45 one night he was arrested in Doncaster and taken to the local Police Station where he arrived at 22.25 and his detention authorised at 22.30.

At 02.40 early the next morning John was awoken and informed that two officers from Avon & Somerset Constabulary had come to collect him to take him to Bath Police Station to be interviewed.

Upon arrival at Bath Police Station, John’s detention was processed by the Custody Sergeant who authorised detention at 05.41 to enable evidence to e obtained by questioning.

At 11.35, John’s detention was reviewed by the Duty Inspector who authorised further detention to obtain evidence by questioning.

Later that morning John was interviewed, during which he denied the allegation.  Eventually, at 14.45,  John was informed that no further action was to be taken against him and he was released.

In accordance with section 40 of PACE 1984, prior to a person being charged, the first review of detention by an officer of at least the rank of Inspector should take place at no later than six hours after detention was first authorised.  The second review should take place not later than nine hours after the first review and subsequent reviews at nine-hour intervals.

In Roberts v Chief Constable of Cheshire Police  [1999] 1 WLR 662, the Court of Appeal upheld a finding of false imprisonment where there had been a failure to carry out a review of the Claimant’s detention in accordance with section 40 of PACE 1984, which rendered the period between when the review should have been carried out and when the review was actually carried out, a period of unlawful detention.

John’s detention was authorised at 22.30.  In accordance with section 40 of PACE 1984, his detention ought to have been reviewed by an Inspector no later than 04.30.  John left Doncaster Custody Suite at 02.25 and his detention was not reviewed when he was en route to Bath Custody Suite and although the Custody Sergeant authorised his continued detention at 05.41, an Inspector did not review his detention until 11.35.  Applying the requirements of section 40 of PACE 1984 and the case of Roberts, this failure rendered John’s detention between 04.30 and 11.35 unlawful.

On that basis, John was unlawfully detained for nearly 8 hours.

I am pleased to confirm that once I had intimated a claim, Avon & Somerset agreed to compensate my client and he recovered £2,000.00 damages.

This sort of claim should not be thought of as the exploitation of a mere technicality or ‘loophole’. Rather it is another example of how the Civil Justice System in this country is used to ensure the proper functioning of the Criminal Justice System.  Cases such as this, as the Court of Appeal was no doubt well aware in Roberts, serve as timely reminders for the Police not to overlook the obligations they have to those who they are holding prisoner against their will.  It is right and proper that independent, experienced senior officers should review each and every person’s continued detention at regular intervals.  To do otherwise would be to chip away at one of the pillars that supports the liberal democratic society that presumably we all wish to live in.

How long can the police detain you? Part one

By Iain Gould, solicitor and specialist in civil actions against the police

Following an arrest, even if the initial grounds for a valid lawful arrest are satisfied, the law requires that the Police must justify detention minute-by-minute. A perfectly lawful detention can become unlawful (and therefore constitute false imprisonment) if the Police exceed their Statutory Powers set out in the Police and Criminal Evidence Act 1984, for example, if a person is detained for an excessive amount of time or if statutory reviews of detention are not undertaken.

I recently concluded a claim on behalf of my client “Tracy Wilkes” (name changed) where an initially lawful arrest ultimately led to a payment for false imprisonment.

My client had been involved in a dispute with a neighbour and the Police were called.

In response 3 officers of Gloucestershire Constabulary attended. My client reported to the officers that she had been assaulted by a female neighbour.

My client’s neighbour made a counter allegation of assault against my client, supported by her partner.

In the circumstances, the officers arrested both women on suspicion of assault and both were then transported to the local Police Station.

Upon her presentation to the Custody Officer, the detention of my client was authorised for the purposes of carrying out enquiries into the offence, conducting an interview and for statements to be obtained, there being insufficient evidence at that time to justify a charge immediately.

By 14.00h, (several hours after Tracy’s arrest) conduct of the investigation was passed to a Police Sergeant.

As a result of a review of the investigation, the Sergeant determined that a prosecution was not appropriate and that a ‘Restorative Justice’ disposal would be sufficient.

During the early evening, my client reluctantly engaged in a ‘Restorative Justice’ meeting, together with her neighbour.

My client was not requested to sign any documentation related to the Restorative Justice meeting and was ultimately released from Custody at 18.45h.

Whilst the initial period of her detention was lawful, it was clear to me that the overall length of detention was unnecessarily and unreasonably prolonged.

Section 37 of PACE is clear that further detention can only be authorised if there are reasonable grounds for believing that detention without charge is necessary

  • to secure or preserve evidence relating to an offence for which the suspect under arrest or
  • to obtain evidence by questioning to secure/preserve evidence.

In this case, the Custody Sergeant assessed that a prosecution was not appropriate and that further detention was necessary to complete the ‘Restorative Justice process’.

Given that it was not anticipated that further evidence was to be acquired, the continued detention of my client to achieve the ‘Restorative Justice process’ was unlawful and on that basis she was awarded compensation.

It is clear that the Police had grossly exceeded their powers of detention. The function of detention in police custody is to allow a proper investigation if a suspected crime to be carried out. Here the Custody Sergeant and his colleagues had taken it upon themselves to go beyond police functions of investigation into setting up a quasi-court in the police station, and setting themselves in the rule of Judges, detaining Tracy (and her neighbour) for the purposes of passing judgement on them, which in this case was the enforced ‘restorative justice’ meeting.

 

Are the Police failing to stop sexual predators joining their ranks?

I have just concluded yet another claim where a Police Officer abused his position for sexual gain.  In addition to paying my client substantial damages to reflect the harm caused, the Police Force agreed to issue to my client an apology.

Here are the terms;

“Please accept our regret and sorrow for the events that took place that simply should not have happened. 

We have learnt significantly from the events that unfolded in 2015, which has led to changes within our processes. 

  • We will strive towards improving the appointment and selection of Family Liaison Officers (FLO’s) to ensure that similar events do not happen in the future.
  • We now offer bespoke training to all FLO’s and their coordinators, to ensure there is an increased awareness of boundaries between FLO’s and the individuals they are assigned to. 

We offer our sincere apologies for the harm, injury and damage that was caused to yourself and your family”.

Officers using their position for the purpose of sexual exploitation is a form of serious corruption.  Although the problem was highlighted in the 2012 IPCC/Association of Chief Police Officers (ACPO) report as well as numerous high-profile misconduct and criminal cases, it is depressing that little or no action has been taken to address this.

In 2012, the IPCC/ACPO report called for a number of safeguards to be introduced;

  • Enhanced internal vetting procedures.
  • Greater supervision to ensure proper boundaries and response to reported concerns.
  • Effective use and management of intelligence.
  • Review to ensure lessons are learnt.

In 2015 (the year my client was abused), Her Majesty’s Inspectorate of Constabulary (HMIC) reported that the issue was of great concern to the public and hence required further review.  In particular, the watchdog advised that the best way for forces to tackle abuse of authority was to prevent it from happening in the first place.

HMIC identified that “Some counter-corruption units did not have the capability or capacity to seek intelligence on potential abuse of authority for sexual gain”.

It also found that almost half of forces inspected were unable to audit or monitor use of all IT systems – limiting how much information could be gathered to identify officers or staff who might be accessing databases to hunt for vulnerable victims.

In many forces, personnel did not have a “sufficiently clear understanding” of the boundaries regarding “establishing or pursuing relationships with vulnerable people”. 

In light of the recommendation that these issues needed to be addressed, I was outraged to read yesterday of Cheshire Constabulary’s failings as regards the appointment of PC Ian Naude in 2017.

PC Naude has been found guilty of raping a 13-year-old girl who he had first met a few days before following a domestic incident at her home in October 2017.  After looking her up on Facebook and exchanging sexual messages and photos, he returned to her home three days later.

He picked her up while her mother was out and drove her to a country lane where he attacked her. 

This is a very sad case in which opportunities to stop PC Naude were clearly missed.  He had been “vetted” as of suitable character to become a student Police Officer in October 2016, but his recruitment was put on hold in February 2017 when Staffordshire Police (a neighbouring Force) received a complaint from a woman who said Naude had raped her.

When that allegation resulted in ‘no further action’ Naude was allowed to join Cheshire Police in April 2017, going on to groom and rape the 13-year-old girl only 7 months later.

In my opinion, it is clear that following the rape allegation of February 2017, Naude should have been re-vetted by Cheshire Police.

Had they done so (we now know) they would have discovered that Staffordshire Police also had details of an allegation against Naude that he had sexually abused a child and that he had been reported to West Mercia Police for stalking another child on social media (both reports made in January 2017).

This information was available on the Police National Computer system, but because no re-vetting was carried out Cheshire Police remained unaware of these allegations until they started to investigate the October 2017 rape.

It is shocking that such opportunities to identify and stop a rapist and paedophile from joining the Police were missed, especially given the numerous recent cases and reports regarding the problem of predatory police officers which I have highlighted above.

It is time I think for the Police to show to us that they are paying more than just ‘lip service’ to tackling this problem, both in terms of rooting out, but also turning back at the recruitment stage, men who could very well be tempted , or be intent from the outset, of using the tools of power given to them by the honourable office of Police Constable to target and abuse some of the most vulnerable women and children in our society.

 

 

 

Victim of Police Injustice? Choose Your Solicitor Wisely!

Several years ago, I was contacted by Kevin Holt.  He had been arrested a few months before for being Drunk and Disorderly and assaulting a Police Constable.  Following his arrest, he was charged and bailed to attend Court.  He had attended Court, pleaded not guilty and was awaiting trial.

Kevin had declined the services of a Solicitor at the Police Station and so, once bailed to attend Court, was sensible enough to realise that he needed representation for his appearance at Court.

Kevin’s Story

The circumstances of this incident, as reported to me by Kevin were as follows.  Kevin was in York, visiting two old university friends to celebrate one of them turning 40.  In the early hours of the morning, the three friends were on their way towards York Train Station, where they knew there would be a taxi rank so they could travel back to the house where they were staying.  It was then that they were approached by a Police Officer who will be identified in this blog as ‘Police Sergeant Ali’.  Kevin happened to be carrying a bottle of mineral water.  Sergeant Ali approached Kevin and stated that he couldn’t drink alcohol in this area.  Kevin quite reasonably pointed out that what he was drinking was water, not alcohol.  At the Officer’s request, he handed the bottle to him, but it appears the Officer did not smell/check the contents of the bottle.  Had he done so, it would have been quite obvious that it was not alcohol.

Instead of letting the friends go on their way, Sergeant Ali then informed Kevin that he had a power to arrest him, but did not give any reason or specify an offence.  Kevin challenged the Officer as to what offence he could possibly have committed.  Sergeant Ali failed to specify what offence he was considering and now insisted that Kevin provide his name and address.  Kevin refused to do this, beyond giving his middle name of Robert only, because he believed – quite rightly – that the Officer had no power to require him to give his name and address if he had not committed an offence.

Becoming exasperated, Kevin accepted that he did at this point swear (with words to the effect of “I can’t see why you want my fucking details”) and feeling intimidated by Sergeant Ali’s continued demands for his details, ran across to the other side of the road.

Kevin was then chased by Sergeant Ali and a second Officer, who will be identified in this blog as ‘PC Smith’.

PC Smith grabbed Kevin and manhandled him to the ground.  Kevin was incredulous at what was happening to him.  Out of the blue, his enjoyable night with his friends had suddenly turned into a situation in which he was being held face down on the ground by Police Officers.  Kevin could feel PC Smith kneeling on his back and using his hand to hold Kevin’s head to the ground.

PC Smith then forcibly pulled Kevin’s left arm across his back causing him considerable pain and discomfort and then, whilst he remained pinned helplessly to the ground by the combined weight of both Officers, Kevin found himself being sprayed in the face by a canister of PAVA gas which was being wielded by Sergeant Ali.  The gas was sprayed at point-blank range for several seconds into Kevin’s face causing instant and acute pain to his eyes, nose and throat.

Kevin was then handcuffed and roughly manhandled into a Police car, including having his head banged on the car doorway as the Officers moved him (something which you may recall President Donald Trump encouraged American Police Officers to do to ‘felons’ in their custody).

Kevin was subsequently shocked to learn that the two Officers involved – Sergeant Ali and PC Smith-  had given witness statements which painted a dramatically different account of their encounter with him, containing serious allegations about wrongdoing on his part which Kevin completely disputed.   The Officers variously alleged that Kevin had immediately become abusive towards Sergeant Ali (despite the fact that he had handed over the bottle of water without complaint), alleged that Kevin repeatedly swore at Sergeant Ali and that when PC Smith attempted to detain him, Kevin had attempted to grab the Officer’s taser gun, and then furthermore that whilst the Officers were detaining him, Kevin had struggled violently and twice kicked Sergeant Ali in the leg.

Kevin who, as my experience would show, is a thoughtful and well-mannered man of good character, was understandably outraged by these false accusations by the Officers, who sought to paint him as a drunken, foul-mouthed and violent lout.

Magistrates Court Proceedings

At the time of his arrest, Kevin was living in Exeter but had been visiting a friend in York to celebrate the friend’s birthday. In the circumstances, Kevin chose to instruct a local Solicitor in York.

Following an internet search, Kevin identified a criminal defence Solicitor based in the city and made contact. Kevin explained that he had been arrested for being Drunk and Disorderly, was due in Court and intended to plead not guilty.  The Solicitor agreed to act and advised his fee would be £300. Kevin paid up front and attended Court. The prosecution provided some disclosure, notably the statements of the two officers.

Following review and presumably cognizant of both Kevin and the officers’ accounts (By his own admission, Kevin had drunk 6 pints of cider and the arresting officer Sergeant Ali stated that at the time of arrest, Kevin “smelt of intoxicating liquor, his  eyes were glazed, he was unsteady on his feet, he was drunk”) his Solicitor advised him to plead guilty, notwithstanding Kevin’s clear instructions that he had not been disorderly nor assaulted any Police Officer, in short, that he was innocent.

Kevin was understandably disappointed by his Solicitor’s advice and it was this that encouraged him to make contact with me following an internet search.

At this stage, Kevin’s objective was to ensure that the criminal proceedings terminated in his favour (either by discontinuance or acquittal at trial) and to then sue the North Yorkshire Police for wrongful arrest.

So, to begin with, I encouraged him to change Solicitors and I then arranged for representation at the forthcoming trial with a clear direction to the advocate that from the Defence perspective, the trial would be effective and Kevin’s not guilty plea would be maintained.

Several weeks later, I was delighted to be informed that after a contested trial where both arresting officers gave evidence, Kevin was cleared of being drunk and disorderly and of assaulting either officer.

Kevin’s acquittal now opened the gates for him to bring a civil claim against the Police. Had he been found guilty, it would have been ‘game over’.

County Court Claim

Following a review of all the evidence, I intimated a claim against North Yorkshire Police.  Following investigation, the Police Force denied liability, maintaining that Kevin had been Drunk and Disorderly and had assaulted an Officer, therefore justifying his arrest and subsequent prosecution. North Yorkshire Police advised

The arrest and detention of  your client was entirely lawful, and any force used by the officers in effecting arrest were entirely reasonable given the behaviour and demeanour of your client at the time”.

Notwithstanding the denial, I was satisfied that Kevin’s case enjoyed good prospects of success and therefore on my recommendation, Kevin authorised me to institute Court proceedings for false imprisonment, assault and battery and malicious prosecution.

Following issue of proceedings, North Yorkshire Police maintained their denial of liability and pointed out that even on Kevin’s account,  he had admitted to;

a) Swearing at Police Sergeant Ali before his arrest;

b) Refusing to give and/or confirm his true details to any officer until, on his case, nearly 10 hours after his arrest;

c) Giving a false name and/or seeking to  mislead PS Ali by stating his name was “Robert”, which transpired to be his middle name;

d) Acting foolishly by running away from PS Ali;

e) Being rude and abusive in custody.

Kevin’s admissions aside, I was satisfied that his claim enjoyed good prospects and I encouraged him to ‘bat on’. I felt that Kevin’s only ‘crime’ was not being sufficiently submissive to an officer when Sergeant Ali demanded his details. We do not live in a country where the Police have a right to demand ‘your papers’ (as it were) and Kevin was doing nothing wrong in refusing to give them. I believe that Sergeant Ali had severely overreacted when he felt his authority was being questioned, and any ‘disorder’ that ensued was caused by the Police, not by Kevin.

The Court subsequently fixed the case for a Case Management Hearing in July 2018.  In advance of that hearing, the parties agreed to engage in a Joint Settlement Meeting at which all issues were aired and after extensive negotiation, a settlement of £25,000 damages plus costs was agreed for Kevin.

Kevin was delighted.  Following his initial encounter with officers of North Yorkshire Police, he had been engaged in a long and arduous fight for justice and finally, nearly 4 years later, justice had prevailed.

I am delighted to have played my part in Kevin’s struggle but what concerns me gravely is the fact that, had he listened to his first criminal defence lawyer, he would have pleaded guilty and he would have returned home a broken man, having lost faith in both the Police and our Criminal Justice System. Furthermore, Sergeant Ali and his colleague PC Smith would have gotten away with their oppressive, heavy-handed and frankly unlawful conduct towards an innocent member of the public.

In my experience, too many Solicitors seek to persuade their clients to plead guilty.  Many jaded criminal practitioners it seems to me, made cynical by the nature of their day-to-day job, seem to assume most of their clients are guilty, and seek to get the case off their desks by encouraging a ‘guilty plea’, which they can entice clients to make because of the promise of a reduced sentence (compared to being found guilty after Trial). This attitude lets down honest and upstanding individuals who have simply found themselves in the wrong place at the wrong time, or who have run afoul of Police aggression/ misconduct. This problem amongst criminal defence solicitors was highlighted by Dr Daniel Newman in his recent article “Why do some defence lawyers regard their duties as a problem”. To quote from Dr Newman –

Beyond simply believing clients guilty, I saw every lawyer push clients to plead guilty, in many cases despite the client asserting their innocence and wanted to plead not guilty.

Here, I’m pleased to say, Kevin came to me for a second opinion, and I ensured that he first got the right advice, and then at the end of the day, the right result. I will leave the last words to Kevin himself –

“I’d like to thank Iain Gould and his colleague John Hagan for their support and expertise in conducting my case. I am very happy with the settlement I received. Iain did not shy away from issuing Court proceedings when it was necessary, and he and John provided me with calm advice and robust representation, making what could have been an uncomfortable and nervous process a lot easier.”

The “Eggshell Skull Rule” and the Impact of Arrest

I have previously blogged about the impact an arrest can have, especially on those who have a history of anxiety and depressive symptoms and are therefore at risk of a further mental illness (see The Untold Story of Police Detention ).

The law holds, by what is known as the “Egg Shell Skull” rule,  that a Defendant must take their victim as they find them, i.e. if the victim is particularly  mentally or  physically vulnerable or has a pre-existing condition resulting in them suffering greater injury from the Defendant’s actions than would be expected in an ordinary person, the Defendant remains responsible for the full extent of the injury.

I was mindful of this rule when pursuing a claim against the Court Service on behalf of an elderly client, “Sheila” (name changed), whose case has recently settled for substantial damages.

In November 2014, Sheila appeared at her local Magistrates’ Court on charges of common assault and a public order offence following an altercation with a fellow passenger on a bus.

Sheila was 68 years old and of good character. She pleaded not guilty and her case was adjourned for summary trial.

As a result of administrative difficulties, the trial was eventually listed for July 2015.

Unfortunately, Sheila failed to attend the trial as required whereupon the Court proceeded to hear the case in absentia and convicted Sheila of the offences charged.  Due to her non-appearance, the Court also issued a warrant for her arrest.

Sheila had  ‘put her head in the sand’ and hoped the case would go away.  It didn’t.  After she confided in family members, she was encouraged to hand herself in. Accordingly, a few days later Sheila voluntarily surrendered to the Court.  As a result of her non-attendance, Sheila admitted an offence contrary to section 7 of the Bail Act and was sentenced for the original offences that she had been found guilty of.

Accordingly, following this hearing Sheila was no longer ‘wanted’ and all proceedings had concluded. As a result, the Court should have taken steps to ensure that the warrant that had been issued was cancelled and withdrawn.  Sadly they didn’t.

At approximately midday the very next day, a Saturday, Metropolitan Police Officers attended Sheila’s home address and arrested her for failing to appear at Court. Her protests that the warrant had been withdrawn and that she had already been punished were ignored.

Sheila was thereafter detained at her local Police Station for the next 2 days during which she was recorded as  “extremely anxious”, “unable to concentrate on what was being said”, “upset and crying” and generally incoherent.  Eventually, she was produced at Court on Monday morning whereupon it was established that the warrant had indeed been executed and dealt with a few days before.  Accordingly, Sheila was released from custody.

In the circumstances, Sheila had a cast iron case against the Court Service for failure to ensure that the warrant was cancelled and/or for failing to update the PNC.  Court staff had failed to follow standard operating procedure causing the warrant to remain active on the Police National Computer (PNC).

I was instructed to pursue a claim on behalf of Sheila and identified that she had a claim for false imprisonment, negligence and/or breach of Human Rights (Article 5, the Right to Liberty).

Not only had Sheila been unlawfully locked up for 2 days, because of her wrongful arrest she suffered a significant deterioration in her mental health. Shortly afterwards, she had a hypomanic episode.  She was subsequently found in a paranoid and suicidal state in local woods and was detained by the Police under Section 136 of the Mental Health Act and then a few days later jumped into a river. This led to a lengthy acute psychiatric hospital admission at the conclusion of which she was diagnosed with Bipolar Affective Disorder. Following her discharge, she continued to receive treatment from the Community Mental Health Team.  She was prescribed antipsychotic medication to prevent hypomania/mania and antidepressant medication for depression and anxiety.

In October 2016, Sheila suffered a relapse in her condition.  It would appear that this relapse was triggered by a failure to take her prescribed antipsychotic medication.  She was found by a member of the public with bleach on her lips and later observed walking in and out of traffic on a busy road nearby.  She was informally admitted to a psychiatric hospital under Section 3 of the Mental Health Act 1983.  During this admission, Sheila verbalised her thoughts and distress about the incident in July 2015.  Antidepressant withdrawal and an increase in her antipsychotic medication helped to stabilise her mood.  Following improvement Sheila was given one week’s leave from the inpatient unit with support from the Home Treatment Team.  She was finally discharged from hospital 3 weeks later.  The Community Mental Health Team took over her care from thereon.

2 years after her unlawful arrest, Sheila remained under the care of the Community Mental Health Team and a community psychiatric nurse continued to visit her at home. She continued to take regular medication. 

Clearly, Sheila had suffered loss of liberty, but could it be said that the deterioration in her mental health was attributable to the arrest or to other factors? At the time of arrest, Sheila had a long history of anxiety and depression. Further, it was evident from her medical records that in the period leading up to her unlawful arrest, she was suffering from low mood and anxiety.

I commissioned a report from a psychiatrist who found that Sheila was likely to have had a pre-existing vulnerability to developing Bipolar Disorder, particularly in  response to significant life events and concluded that on the balance of probabilities, the stress associated with her wrongful arrest and detention triggered a hypomanic episode, subsequently classified as a Bipolar Disorder.  For the expert what was key was the temporal relationship between Sheila’s detention in police custody and the acute deterioration in her mental health only 3 days later, requiring the use of Section 136 of the Mental Health Act, and a psychiatric hospital admission  5 days after that.  

Bipolar Disorder is a very severe condition.  Many people suffer from periods of anxiety and depression from time to time, but they would be expected to recover and are essentially able to continue with their day to day life during these episodes.  The psychiatrist concluded that the condition would affect Sheila for the rest of her life.  It will be a blight on the rest of her life and she will need to take appropriate medication for Bipolar Disorder for as long as she lives, because, if she stops, she is likely to suffer a relapse.  For the most part, this medication is likely to control her condition, but she is at risk of a relapse, and Bipolar Disorder is well known to entail an increased risk of suicide.

This is a classic example of the Egg Shell Skull Rule which I referred to at the beginning of this article.  In most people, even a stressful incident such as this, including two days’ unlawful detention in Police cells, would not cause them to become ‘Bipolar’ but in Sheila’s case, because of her pre-existing vulnerability, it did.  It is quite right that the law holds the Court Service to account for the dramatic effect their wrongdoing had on Sheila, notwithstanding that in most people it would not have provoked the emergence of such a severe illness.

Are the Police Misusing their Strip Search Powers?

I was recently consulted by the BBC in relation to the case of Koshka Duff, an academic who was arrested and subjected to the gross indignity of a strip search by the Metropolitan Police. You can read Koshka’s story here.

Excessive Force and Unlawful Arrest

I was sadly unsurprised to note that whilst all evidence points to excessive force being used against Ms Duff, she being the one with documented, visible injuries following this encounter – it was she who was accused of assaulting an officer rather than the other way around. An accusation of ‘assault PC’  often seems to be a reflective defence mechanism by the officers involved in ‘over the top’ arrests, who are, no doubt, conscious of the need to justify the force they have used, by alleging violence on the part of the person arrested; in my experience, the majority of these ‘suspect’ allegations of ‘assault PC’ are subsequently dropped before they get to Trial or else are disproven in front of the Magistrates.

Refusal to Provide Personal Details following Wrongful Arrest

Whilst I entirely sympathise with Ms Duff’s strong feelings that because she had been assaulted and wrongfully arrested she did not want to ‘give in’ to the Police and provide her details, long experience tells me that no good comes of such an action. I would advise everyone, once arrest has occurred – no matter how wronged you may feel – to co-operate with the Police and provide disclosure of your personal details. This will give the Police far fewer excuses to prolong your detention, or indeed to detain you at all – if you provide your details, it may not be justifiably “necessary” for the Police to take you into custody as opposed to issuing a penalty notice, a summons or having you attend a voluntary interview at a later date. If you present yourself as John/ Jane Doe you are giving the Officers a valid reason to detain you until your identity is established.

I feel that rather than withholding her details – or trying to use that information to bargain with the officers – Ms Duff should have identified herself, and taken the earliest offered opportunity for interview (by all means going “No Comment”). This may well have led to her earlier release.
In co-operating with them, you may have to swallow your pride for a short time, but all of your rights to pursue a complaint and/ or a civil claim for compensation are intact. By providing your details, you can ‘fight again another day’ and in the meantime have hopefully considerably shortened the time the Police can lawfully detain you for. In the end, everybody ends up having to identify themselves so this kind of protest at arrest is, sadly, inevitably futile.

Misuse of Strip Search Powers by the Police

On the facts available to me, the strip search of Ms Duff certainly seems excessive and unlawful. There appear to have been no reasonable grounds to assume that Ms Duff was carrying a weapon on her person (or any other concealed/ prohibited item) and the truth behind the search appears to have been spelled out by the Custody Sergeant himself when he wrote in the Custody Record “Refuses to tell police her identity”. Refusal to identify yourself – notwithstanding my comments above that Ms Duff should in her own best interests have done so – does not entitle the Police to subject you to the gross indignity of a strip search absent other reasons/ clear risk factors.

I sadly suspect that the decision to strip Ms Duff was born out of Police frustration at her refusal to identify herself, and was in that respect a gross misuse of the power i.e it was intended to frighten/ shock her into ‘submission’ such that she would become compliant with Police demands. In numerous cases in which I have acted, I have seen highly ‘suspect’ strip- searches being authorised in circumstances where it seems the true intent – as here – was to punish/ humiliate the detained person. Indeed, I have recently settled a claim on behalf of Mr Paul Ponting against Lancashire Police, one of the key features of which was a strip search that in my opinion was totally illegal and unjustified; it must have been apparent to the officers that Mr Ponting had no dangerous/ concealed items on his person yet he was nevertheless violently stripped of his clothes and left naked in a cell for hours, all because he had not immediately co-operated with questions put to him by the Custody Sergeant on arrival at the Station. Little or no (less than a minute) attempt was made to reason/ discuss with Mr Ponting before he was carted off to the cell for what we might call his ‘dose of medicine’ (in the eyes of the Police). Footage of this shocking strip search was recently featured in high- profile media reports regarding the settlement of his case, including by the Liverpool Echo and ITV News. I strongly feel that Ms Duff was a victim of the very same brand of Police misconduct.

I would point out that the comments of the Officers as reported by Ms Duff – derisorily referring to her as a “bleeding heart Lefty” and “some sort of Socialist” – demonstrate that at no point did they seriously consider her to be a criminal or gang member carrying weapons or drugs – and in this light we can, I believe, correctly characterise her subsequent stripping as a deliberate and malicious act specifically designed to teach someone who they considered to be an interfering busybody a lesson…In doing so it was, in my opinion, the Police Officers involved who made themselves criminals by perpetrating an unlawful assault upon an innocent citizen.

I wish Ms Duff the very best of luck in proceeding with a Judicial Review of the Misconduct Panel’s decision to exonerate the Custody Sergeant who authorised the strip search. The road to justice can sometimes be a long one, but when a person’s determination is combined with the right legal advice and representation, all obstacles can be overcome.

Can the arrest of a child ever be justified?

Guidance issued by the College of Policing (which applies to children/young persons), states as follows: “Children and young people are a protected group with specific vulnerabilities. Their treatment in detention is governed not only by domestic legislation but also by the UN Convention on the Rights of the Child (UNCRC) which the UK has signed and ratified. The UNCRC defines a child as a human being below the age of 18, unless the relevant laws recognise an earlier age of majority”. In particular, the UNCRC specifically states that custody should be used “only as a measure of last resort and for the shortest appropriate period of time”. The bar to justify the detention of a child in a police cell is therefore very high.

The reason is obvious; an arrest has the potential to affect a child’s life adversely in many ways, from the immediate traumatic experience of detention to the uncertainty of prosecution. It can also tarnish their futures, for example through Disclosure and Barring checks that could affect job or study opportunities.

Notwithstanding the UN Convention, the sad fact is that the Police are still arresting some children where an arrest is simply not necessary and could and should have been avoided by means of an invitation to voluntarily assist the Police, by way of interview.

In this respect, I have just concluded claims brought for 5 children against a regional Police Force which resulted in payments totalling £40,000 in compensation for wrongful arrest.

All 5 boys (then aged either 14 or just 15) were arrested on suspicion of assaulting a fellow schoolboy 5 months earlier. At the time the victim had allegedly been too scared and embarrassed to report it.

Upon notification, the Police made initial enquiries, arranged to interview the victim and then arrested the 5 suspects the following day. Given the number of suspects and suggested requirement for them to be arrested and interviewed at the same time, this was identified as a “resource intense process”.

Arrest was said by the Police to be necessary in order to “seize mobile phones from the suspects, and to avoid the possibility of contamination of accounts by way of collusion”.

On the day of arrest, 3 of the boys were arrested at their school and 2 at home. The debrief for this “resource intense process” appears to have been rushed and incomplete; 3 of the boys were arrested for rape and 2 for sexual assault. Phones and laptops were seized and all 5 were escorted separately to a local Police Station whilst efforts were made to contact their parents to act as Appropriate Adults.

All 5 boys had no prior experience of arrest, let alone Police custody. All 5 were, understandably bewildered and intimidated by their arrest and subsequent detention. Upon arrival at the Police Station, the 5 were individually processed; first obliged to provide their personal details and then quizzed as regards their health and general wellbeing. In response, the boys said they were “confused”, “shocked and upset”, “nervous” and “scared and confused”. All 5 were searched and any possessions seized which for one boy included “cash of £5.47, bottle of water, train ticket, school note book, sweet, tie and wrist band” and another “train ticket, jumper, tie and chewing gum”. All 5 were then escorted to and locked up in adult cells which were described as cold and dirty. All 5 subsequently described feeling isolated and scared.

In due course, the nature of the alleged offence was clarified (the complainant alleged that he had been sexually assaulted not raped), parents arrived to act as Appropriate Adults and all 5 boys were interviewed during which each answered questions, robustly denying the allegation. Eventually, after 5 – 6 hours in custody, all 5 boys were released on bail for further investigation. Three months later they were advised that no further action would be taken.

On the basis of the complainant’s account, it was appropriate to interview the 5 boys but was it really necessary to arrest them, particularly given that arrest and detention must only ever be a last resort?

I was instructed to act on behalf of the boys by their parents and I am delighted to report that the Police accepted that each arrest was indeed unlawful. Any theoretical risk of collusion had long passed, as all 5 boys and the complainant had been at the same school for the 5 months since the date of the alleged incident. The trauma of the public arrests and lengthy detention was wholly unnecessary and avoidable.

Following prolonged negotiations, the Police agreed to compensate each boy £8,000 to reflect the shock of arrest and loss of liberty.

Given this was a pre-planned Police operation, concerning 5 suspects, 4 of whom were 14 and 1 who had just turned 15 it is a travesty that more careful consideration was not given to the question of arrest and alternative options to custody.

According to the Howard League for Penal Reform, there were 101, 926 arrests in 2015. It is apparent that at least 5 of those arrests of the children in England and Wales were unlawful. I suspect however that this is just the tip of the iceberg.