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The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 - restrictions on movement and gathering. They revoke the previous regulations. They contain wide restrictions on conduct, apply to England only and will remain force for six months.​

College of Policing Guidance to those regulations.

The Coronavirus Act 2020 has now been enacted.  

Guidance on Further Premises to Close.

The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 at reg 6(1) create a prohibition against leaving one's home without reasonable excuse rather than being outside one's home without reasonable excuse. Not only is that narrower than many people had thought, it shapes the powers of a police constable to direct or remove people to their home, which depends upon the constable considering that they have breached reg 6(1). Furthermore, in criminal proceedings for a breach, it may be that the burden of establishing of the defence of reasonable excuse is on a defendant in Scotland but on the prosecution in the other three home nations. 

  1. This note is intended to assist Appropriate Authorities (“AAs”), Professional Standards Departments (“PSDs”) and hearings units to progress misconduct proceedings[1] under the Police (Conduct) Regulations 2012 and 2020 (“PCR”), during the outbreak of COVID-19. We suggest that AAs should try to proceed with hearings by video and/or telephone where possible, and we explore the practical implications of doing so. 

  2. What follows are simply our suggestions. They carry no legal authority. We have endeavoured to keep this document brief and to avoid duplication of other more general or analogous guidance.[2] Any person concerned with misconduct procedures should keep track of the general position in respect of the COVID-19 outbreak and the advice from HM Government at https://www.gov.uk/coronavirus.

For those wishing to exercise their exercise rights, the new Coronavirus regulations treat English and Welsh joggers rather differently.

Regulation 6 of The Health Protection (Coronavirus Restrictions) (England) Regulations 2020 states that, “During the emergency period, no person may leave the place where they are living without reasonable excuse.” A reasonable excuse includes, under Reg.6(2), the need “to take exercise either alone or with other members of their household.”

By contrast, Regulation 8(2) of The Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 states that a reasonable excuse includes the need, “to take exercise, no more than once a day, either alone or with other members of the household.” [emphasis added]

The reason for this difference in treatment is unclear. It seems unlikely that the challenging Welsh topography explains why an exercise session is to be regarded as so much more exhausting than it might be on the English lowland plains. It might be suggested that, even in England, there is no ‘need’ to go out of the house to exercise more than once a day. This may be debatable, for example when issues of mental health are taken into account.

These differences in drafting demonstrate how challenging a job it will be for the police to encourage and enforce compliance with the new restrictions, while remaining understanding of the challenges that people face, and adhering to the hallowed principle of policing by consent.

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 were made at 1pm on 26 March 2020 and are now in force. They contain sweeping restrictions never before seen in peacetime in the United Kingdom. They apply to England only and expire in 6 months. They revoke and replace the Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 – leaving the business closures in place.

The powers in the Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 allow a constable to “take such action as is necessary to enforce a premises closure or restriction”. The powers in theCoronavirus Act 2020, schedule 22 (formerly schedule 21 in the Bill) are to enforce a restriction or prohibition on gatherings or events and to close and restrict access to premises during a public health response period. Again, it will allow a constable to “take such action as is necessary to enforce such a restriction, prohibition or closure”. But what does the phrase, “take such action as is necessary to enforce …” mean?

The almost 330-page Coronavirus Bill 2020 was published on Thursday 19 March 2020 and is likely to become law on Thursday 26 March. It will contain a 6-month sunset clause but may be renewed. The key parts of the Bill from the point of view of policing are Schedule 20 – which deals with powers relating to potentially infected persons – and Schedule 21 – which deals with powers to restrict events, gatherings and premises. This article provides a summary of the police powers and duties. They may change in the light of the Prime Minister’s televised national address on the evening of Monday 23 March.

No one reading this blog will have failed to notice that yesterday evening, the Prime Minister announced a series of measures which some are referring to as “lockdown”. The full text of the announcement can be found here.

It is also clear that the enforcement many of these will involve the police. However, the basis or extent of these powers has not been made clear. For example, in relation to the announcement that the government is “stopping all public gatherings of more than two people” it has been said that the police will have the power both to fine people and to disperse such gatherings. The announcement does not make clear: 

We are all under attack from the Severe Acute Respiratory Syndrome Coronavirus 2 (“the Coronavirus”). This time, our foe is not a country, a terrorist group or a person. Nor is it a predator. Chillingly, it is not even alive. The Government has exceptionally wide powers under the Civil Contingencies Act 2004 in this present emergency which could include forcible quarantine and assessment, the confiscation or requisition of property and compelling citizens to assist in policing.​

The Coronavirus Bill was published on Thursday 19 March 2020: https://publications.parliament.uk/pa/bills/cbill/58-01/0122/20122.pdf. It is likely to become law on Monday 23 March 2020.

The Bill, at sch 20, pt 2, para 24(1), revokes (and replaces) the very recent Health Protection (Coronavirus) Regulations 2020 (S.I. 2020/129).

On 20 March 2020, Dijen Basu QC, David Lawson and Elliot Gold recorded video seminars on new and existing police powers, the Civil Contingencies Act 2004, police organisation and collaboration and the duty of care to officers, police staff and members of the public arising from the Coronavirus emergency.

Below are links to the seminars:-

Dijen Basu QC speaks about the police powers in the Coronavirus Bill 2020 - schedules 20 and 21.

Elliot Gold speaks about the police collaboration, mutual aid, increasing police numbers and resilience.

Dijen Basu QC speaks about the Civil Contingencies Act 2004.

David Lawson gives an overview of the Coronavirus Bill 2020.

There is also a private link for the questions and answers sessions that we recorded, dealing with questions that people emailed to us. Please contact This email address is being protected from spambots. You need JavaScript enabled to view it. for further details. 

Applications for forced marriage protection orders (“FMPO”s) made pursuant to s.63A of the Family Law Act 1996 are on the rise: in 2018, the government’s Forced Marriage Unit provided advice or support in 1,764 possible forced marriage cases; a significant increase from the following 1200-1400 cases in 2017. Also in 2018, Family Court statistics indicate that 322 applications were made and 324 orders granted. Despite applications being made by police, who must seek leave to make such an application under s.63C(3) of the Family Law Act 1996, and local authorities, the legislation itself does not provide clear guidance as to how the court should deal with such applications. The President of the Family Division, Sir Andrew McFarlane, has now done so in Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190. 

In Chief Constable of Essex Police v Transport Arendonk Bvba [2020] EWHC 212 (QB), the High Court (Laing J) refused to strike out a claim in negligence, against the police, where the driver of a lorry carrying cargo had been arrested for drink-driving, and the cargo had been stolen during the driver’s detention at the police station. It demonstrates the continued difficulty to identify what is a police "act" or "omission" - and what amounts to the police causing a state of danger, giving rise to liability.

It is possible for the social media activity of professionals to amount to professional misconduct, even if seemingly made in a personal capacity and where freedom of speech is claimed. The case of Diggins v Bar Standards Board [2020] EWHC 467 (Admin), holds that there is no "bright line" between conduct that falls within the private realm as opposed to that which is sufficiently public to engage a professional disciplinary jurisdiction. It is sometimes argued in police misconduct hearings that private social-media behaviour of officers falls outwith professional misconduct - that might be the case on particular facts but the instant case shows that this is not necessarily so.

The Northern Ireland High Court in C (A Person under a Disability) v Chief Constable of the Police Service of Northern Ireland [2020] NIQB 3 has awarded damages of £16,500 for a breach of article 3 in respect of a failure by the police to conduct a proper investigation into the reported rape of a twenty-year-old woman with Asperger’s syndrome. 

In R (Short) v (1) Police Misconduct Tribunal (2) Chief Constable of Bedfordshire Police [2020] EWHC 385 (Admin), Mr Justice Saini delivered a resounding reaffirmation that misconduct hearing panels are well able to put irrelevant and prejudicial matters out of their minds rather than having to recuse themselves and that they are able to determine their own procedures, just like civil courts and tribunals.

The case of R (Bridges) v Chief Constable of South Wales Police & Information Commissioner [2019] EWHC 2341 (Admin); [2020] 1 WLR 672 is said to have been the first claim brought before a court anywhere on planet earth concerning the use by police of automated facial recognition (“AFR”) technology. There could be nothing wrong with posting scores of police officers with eidetic memories to look out for up to a 800 wanted persons at public gatherings. So why not use a powerful computer, capable of matching 50 faces a second with a database of (under) 800 suspects, to do this job much more cheaply and instantaneously, flagging any matches to a human operator for final assessment? According to the Divisional Court in Bridges, this may, depending on the facts of each particular deployment, be lawful. 

The European Court of Human Rights continues to make clear that a failure by member states to protect women from domestic violence will amount to a breach of article 3. The latest decision in Affaire Buturuga v Romania (App No. 56867/15), available only in French, found a breach of articles 3 and 8 in respect of a failure to investigate adequately and/or take action on complaints of domestic violence and awarded €10,000 general damages.   

Not an English case - but those concerned at the time taken for police cases to be resolved may raise an eyebrow at the case of Kupo v Independent State of Papua New Guinea [2020] PGNC 3. A Papua New Guniea Commissioner of Police was appointed on 1 November 2001, removed from post on 12 September 2002 and then removed from the payroll on 12 December 2002. He was still litigating for damages in 2019. Aside from the case failing for being two years out-of-time, the court held that where the decision to redeploy the Commissioner, having the effect of removing him, was the result of a policy or administrative instruction, this gave rise to no legally enforceable rights or obligations. 

Two recent cases have required the High Court and Court of Appeal to consider in detail the use by local authorities of different powers contained in the Anti-Social Behaviour, Crime and Policing Act 2014 (“ASBCPA”) to limit or prevent protests that have contained a strong religious or moral element. To what extent are the courts prepared to sanction the use of these powers in relation to types of activities that perhaps would not immediately spring to mind when the words ‘anti-social behaviour’ are heard? The answer, in two words, is ‘very prepared’, judging by the decisions in the cases of Dulgerhiu v London Borough of Ealing [2019] EWCA Civ 1490 and Birmingham City Council v Asfar [2019] EWHC 3217 (QB).

The first case concerned a challenge to the imposition by the London Borough of Ealing of a Public Spaces Protection Order. In the second the High Court granted a final anti-social behaviour injunction, sought by Birmingham City Council under section 1 of the 2014 Act. While the cases raise real issues as to the balancing of the Human Rights Act 1998 articles 9, 10 and 11 rights of the ‘protestor’ against those affected by the protests, as will be seen the Courts have had little hesitation in approving or taking action where there was evidence of real harm being caused.

Statutory guidance on what police need to do under the Stalking Protection Act 2010, which introduced Stalking Protection Orders.

The Home Office states that this is statutory guidance on how to approach applying for a Stalking Protection Order and that the information may also help those working for other criminal justice agencies, statutory bodies, and non-governmental or voluntary organisations which are associated with victims or people affected by stalking.

The link to the page containing the Guidance is here.

In R (AB) v Chief Constable of Hampshire Constabulary [2019] EWHC 3461 (Admin), the Divisional Court considered a claim on behalf of a boy with severe learning and communication disabilities, that police had failed properly to investigate what appeared to be a disclosure by him of a sexual assault during a stay at in respite care. He argued that they had wrongly proceeded to interview him despite no witness intermediary being available and had subsequently failed to re-interview him with an intermediary. He argued that this was a breach of Article 3, and unlawful disability discrimination. The Court dismissed the claim, also giving important procedural guidance.

Last year, I wrote a post on this blog discussing a High Court judgment which held that qualified one-way costs shifting (QOCS) protection does not apply automatically in proceedings where a claimant is advancing both a claim for damages for personal injury and a claim other than a claim for damages for personal injury (a mixed claim). The claimants appeal in in Brown v Commissioner of Police of the Metropolis [2019] EWCA Civ 1724 has now been unanimously dismissed by the Court of Appeal.

The case of Fullick v The Commissioner of Police of the Metropolis [2019] EWHC 1941 (QB) concerned an appeal of a Deputy Masters order that the MET Commissioner pay the claimants' costs in the sum of £88,356.22, following the settlement of a contemplated civil claim for damages for breach of article 2 of the European Convention of Human Rights, negligence and misfeasance in public office. Slade J held that the Deputy Master had not erred in awarding the claimants their costs relating to the inquest because the steps taken for the purposes of it were relevant to the civil claim. 

In Volodina v Russia (Application No 41261/17); [2019] ECHR 539 the European Court of Human Rights has held that domestic violence falls within the description of inhuman or degrading treatment for the purposes of article 3, such that where the police receive a complaint of this, they are likely to have an obligation to launch an investigation into it for the purposes of identifying and punishing the perpetrator and, possibly, to take protective measures against such further behaviour.

The Court of Appeal has held in Re M (Children) (Disclosure to the Police) [2019] EWCA Civ 1364, that the Re C test for disclosure of material from care proceedings to the police remains good law after 23 years, and in the light of the Human Rights Act 1996, but with the qualification that disclosure must be necessary and proportionate.

In LXD and ors v Chief Constable of Merseyside Police [2019] EWHC 1685 (Admin), the Administrative Court found that the police had not breached its obligations under Articles 2, 3 and 8 of the Human Rights Act 1998 in its response to a threat to kill LXD and her children. Dingemans J, as he then was, encouraged mediation where the recipient of such a threat sought to challenge the adequacy of the police’s risk assessment or the protective measures that the police have put in place. The judge also questioned the appropriateness of a claim for judicial review being brought in these circumstances, which are likely to involve disputes of fact. 

The Administrative Court has quashed a misconduct panel’s decision to impose a final written warning on the basis that the panel failed to follow the correct approach outlined in the College of Policing’s Guidance on Outcomes in Police Misconduct Proceedings (“the Guidance”): R (Chief Constable of Greater Manchester Police) v Police Misconduct Panel (HHJ Pelling QC, 13 November 2018). The case is on Westlaw but not Bailii. It is, however, a case of considerable importance. It states that when reaching a decision on disciplinary sanction, a panel must not only follow a structured approach to its decision making but show that it has done so in its written reasons.

In R (Boskovic) v Chief Constable of Staffordshire [2019] EWCA Civ 676, the Court of Appeal had to resolve apparently conflicting High Court decisions on two separate questions arising from the application of the Police (Injury Benefit) Regulations 2006. This blog post considers the implications for police pension authorities who are asked to agree to re-open a final decision, thereby avoiding the need for an appeal to the Police Medical Appeal Board, or a judicial review claim. 

In Gilchrist v Chief Constable of Greater Manchester Police [2019] EWHC 1233, the High Court considered officers’ use of force in the context of use of CS gas and a taser repeatedly upon a man who was autistic and mentally distressed and found that its continued use became unlawful. Whereas the initial use of CS gas and Taser were justified, once the police learned of the male's vulnerability as an autistic man and noted that his behaviour was defensive rather than aggressive, a more cautious approach should have been adopted.

The Court of Appeal in (1) Capita Customer Management Ltd v Ali & (2) Chief Constable of Leicestershire v Hextall [2019] EWCA Civ 900, has overturned the Employment Appeal Tribunal and held that employees do not unlawfully discriminate against men when when paying them less for shared parental leave than they pay women when taking enhanced maternity pay as part of maternity leave. Such claims are not sex discrimination claims but equal terms claims, to be brought under the Equal Pay Act 1970, which are bound to fail because they relate to terms of work affording special treatment to woman in connection with pregnancy of childbirth. An appeal to the Supreme Court is possible.

The National Police Chiefs Counsel has released updated operational guidance reinforcing pre-charge bail as a legitimate tool in investigating crime and protecting the public following a decrease its use since 2017.

The NPCC states the following:

Legislative changes to pre-charge bail through the Policing and Crime Act 2017 introduced the presumption that suspects should be released from police detention while remaining under investigation, known as ‘released under investigation’, unless bail is deemed both necessary and proportionate. The Act also introduced statutory time limits and judicial oversight of extensions of bail beyond three months.

Concern that pre-charge bail has fallen considerably, including in domestic abuse, sexual offences and cases involving vulnerable people, has prompted the new guidance.   

Where a court finds a wrongful arrest, it is often due to inadequate grounds for belief in its necessity. However, a brief judgment in Smith v Police Service for Northern Ireland [2019] NIQB 39 is a demonstration of where there is a lack of reasonable suspicion that the person arrested has, themselves, committed the offence. Also of interest is the sum for damages – £3,550 for the unlawful arrest and ten hours’ consequent unlawful detention.

Every police officer knows they must have a reasonable suspicion that a person has committed an offence in order to arrest them. But that is only half of what is required. The second element is that they must have a reasonable belief in the necessity for the person’s arrest. The recent decision of Commissioner of the Metropolitan Police v MR [2019] EWHC 888 (QB) is one of a number of recent cases where appellate judgments have sought to tighten-up what the police must show in order to prove necessity.

In the instant case, a woman ‘A’ and her partner ‘MR’ had been in a relationship for fifteen months. A complained to the police about MR, who could not be traced save for a mobile telephone number. A police officer called MR on 11 January 2010, who then attended a police station for voluntary interview on 12 January 2010. Whilst at the police station and before being interviewed, MR was arrested on suspicion of harassment. He was interviewed, photographed, and had his fingerprints and DNA samples taken. After nearly seven hours, the police released him on conditional bail. He claimed that the arrest and consequent detention was unlawful and was subsequently successful in the county-court. The Comissioner appealed to the High Court.

The calculator allows police officers to see an illustration of their projected pension benefits. 

The Home Office states that this calculator will provide an illustration of a police pension at a chosen retirement age. The results shown are only estimates, based on inputs and other assumptions. This calculator is for guidance purposes and is an estimate only. It is not intended to provide financial advice. If a person requires financial advice, they should contact an independent financial adviser.

The page containing the spreadsheet calculator is here. 

In the case of Eiseman Renyard and Others v United Kingdom (2019) Application no. 57884/17, the European Court of Human Rights has declined to disturb the decision of the Supreme Court in R (Hicks) v Comr Metropolitan Police [2017] UKSC 9; [2017] AC 256, concerning the arrest and detention of royal wedding protesters, for breach of the peace. 

As stated in the blog post discussing the decision of the Supreme Court, the police arrested a number of individuals on 29th April 2011, which was the day of the royal wedding, took them into police custody and released them without charge once the pageant was over. The justification was that the arrests were said to be necessary to prevent an imminent breach of the peace - the violent disruption of the wedding. No-one was brought before a court as foreseen by article 5(1)(c) of the Convention.

In Catt v United Kingdom [2019] ECHR 76, the European Court departed from and disagreed with the Supreme Court, holding that the police's collection and retention of data of a peaceful protestor was an unlawful interference with article 8 of the Convention.

Mr Catt was a 94-year-old man from Brighton; a peaceful protestor who regularly attended public demonstrations since 1947. In 2005, he began attending demonstrations held by ‘Smash EDO’. Although there was often serious disorder and criminality at Smash EDO’s protests, Mr Catt only ever attended in a peaceful capacity and was never charged with anything.

In 2010, he made a ‘subject access request’ to the police, to identify what records, if any, they held on him. The police disclosed sixty-six entries identifying his attending protests between 2005 and 2009. Some were EDO Smash protests, many were other protests. All of these records were held on the police’s “Extremism Database”.

The Association of Chief Police Officers, ‘ACPO’, refused to delete the entries on Mr Catt. They failed to give any reasons for this refusal, and so Mr Catt judicially reviewed ACPO’s decision. In so doing, he claimed a breach of his article 8 right to privacy.

In R (CL) v Chief Constable of Greater Manchester & Secretary of State for the Home Department [2018] EWHC 3333 (Admin), the Divisional Court held that the retention by the police of crime reports which related to sexting incidents in which a schoolboy had allegedly been involved did not breach his rights under Article 8 ECHR.

The decision confirmed that the retention of data by the police in accordance with the prevailing regulatory and statutory data protection framework and relevant guidance was in accordance with the law for the purposes of Article 8(2) whether the alleged offender was an adult or a child.

The duty to have regard to the need to safeguard and promote the welfare of children did not mandate the deletion of data: the best interests of any children concerned was a primary, but not determinative, consideration.

A defendant cannot defend himself from prosecution for breach of a Community Protection Notice (‘CPN’), on the basis that the CPN is invalid. The reason, stated in Stannard v The Crown Prosecution Service [2019] EWHC 84 (Admin), is that there is an effective means to challenge the CPN - either by exercising the right of statutory appeal or by judicial review. Allowing a challenge to the validity of the CPN at trial is not what the relevant statute (the Anti-social Behaviour, Crime and Policing Act 2014, ‘the 2014 Act’) intends, nor is it an effective remedy because the person subject to a CPN should not be required to breach a CPN in order to exercise a right to challenge it.

In Bennett v Chief Constable of Merseyside [2018] EWHC 3591 (Admin), the High Court confirmed that a district judge was correct to make no order for costs against the police after it withdrew its Proceeds of Crime Act 2002 (‘POCA’) s.298 application for cash forfeiture. In considering the decision of the district judge, the High Court reaffirmed three points:

(i) The starting point is that no order for costs should be made provided that the public authority has acted reasonably and properly;

(ii) In determining whether the police acted reasonably and properly, the court should scrutinise the behaviour of the police with care; and

(iii) It may be justifiable to award costs against the police, particularly where the successful private party would suffer substantial hardship if no order for costs were made in their favour.

In Griffiths v (1) Chief Constable of Suffolk (2) Suffolk NHS Foundation Trust [2018] EWHC 2538 (QB), the High Court dismissed claims that the Chief Constable and the NHS Trust were negligent in breaching their duties of care or had breached human rights. The case is interesting for reaffirming three points:

(i) the law will generally not impose liability on a defendant for failing to prevent harm caused by someone else;

(ii) obligations under Article 2 (right to life) or Article 3 (prohibition of torture) of the European Convention on Human Rights (ECHR) will not arise where the institution does not know of a real risk that those rights would be breached; and

(iii) where there is a protective duty in respect of ECHR, Articles 2 or 3, a breach of Article 8 (respect for private and family life) cannot succeed where Articles 2 or 3 are not themselves breached.

The new Investigatory Powers Tribunal Rules 2018 came into force on 31 December 2018, revoking the 2000 rules: See here. The 2018 rules apply to all section 7 Human Rights Act 1998 proceedings before the Tribunal and all covert investigatory powers complaints under section 65 of the Regulation of Investigatory Powers Act 2000, including those which were made before the new rules came into force.

The case of R (Application of the Centre for Advice on Individual Rights in Europe) and (1) Sec State Home Dept (2) Commissioner of Police of the Metropolis [2018] EWCA 2837 (Civ) holds that police officers have the power to do anything that an ordinary citizen can do.

The latest decision of the Court of Appeal in Parker v Chief Constable of Essex Police [2018] EWCA Civ 2788 is important for all police lawyers. The facts are quite detailed but, essentially, where the police perform an unlawful arrest (which would result in unlawful detention), the arrested person will receive only nominal damages where they could and would have been lawfully arrested had the correct procedures been followed.

There is also a second element – which is that the question of whether the police have a reasonable suspicion for the purpose of making an arrest ought to be considered in the round; courts ought not to over-compartmentalise the issue by analysing each factor separately.

The PACE Codes of Practice are available on the Home Office site, on a recently updated page. It states the most recent version of each Code, together with previous versions of the codes and the dates they came into force. The page is here: 

https://www.gov.uk/guidance/police-and-criminal-evidence-act-1984-pace-codes-of-practice.

The Home Office has issued revised Guidance on the use of covert surveillance or human intelligence sources by public authorities under part 2 of the Regulation of Investigatory Powers Act (RIPA) 2000.

The codes of practice also provide guidance on entry or interference with property or wireless telegraphy by public authorities under section 5 of the Intelligence Services Act 1994 or part 3 of the Police Act 1997.

The link to the documents is here