The recent decision of Holmes v CC Merseyside Police [2018] EWHC 1026 (QB) confirms the power of the police to arrest individuals who are not acting unlawfully. It relies on the earlier case of CPS v McCann [2015] EWHC 2461; [2016] 1 Cr. App. R. 6, which held that an arresting officer was acting in the execution of their duty when making an arrest notwithstanding that their suspicion that that offences were being committed being mistaken.

McCann was relied upon in the case of Ahmed v CPS [2017] EWHC 1272 (Admin), which held that an officer had acted lawfully in arresting a person whom they believed to be in breach of an behaviour injunction, where the order had not been validly made and so was of no effect.

The judgment in Ahmed was rather brief being only eleven paragraphs long and given ex tempore. The case of Holmes is more detailed, being an appeal from an order striking out the claim. In brief, Mr Holmes, described as an inveterate campaigner against nuclear power, held a one-man protest on a footbridge on private land. Police officers physically escorted Mr Holmes on to public land after which he pushed past them and ran back. He was arrested for obstructing an officer in the execution of his duty and, five minutes later, further arrested for a breach of the peace and for aggravated trespass.

The Claimant submitted that although the landowner had informed the police that protest was not permitted on his land, the police had no right enforce a landowner’s wish to keep people off their property. There was merely a right to assist a landowner in removing those who were trespassing or where an offence under the Public Order Act 1994 might be committed. The officers had no right to remove the Claimant from the private land or to prevent his return to it. The Defendant’s case was that the arrest was lawful. The Claimant had been given a warning and escorted off the private land. His response was to use violence in pushing past the police officer and then returning to his original position. The Defendant submitted, relying to McCann, it did not matter whether the officer’ grounds for believing that he had a right to prevent the Claimant from returning to the original place was correct.

The court agreed with the Defendant, stating that the case was closely analogous to McCann. The Claimant had no reasonable prospect of establishing that the arresting officer did not genuinely and reasonably believe that he had the justification to arrest him. The officer clearly considered that he had a duty to remove the Claimant from the place of protest and to prevent his returning there. Even if the officer had been misinformed by his senior officers that the Claimant had no right to be on the private land, it was clearly established that his belief to the contrary was genuinely and reasonably believed. The Claimant was therefore obstructing him in the execution of his duty.

This confirms that police officers have very wide powers. The judgment made reference to the statement in Rice v Connolly [1966] 2 QB 414 that “it is part of the obligations and duties of a police constable to take all steps which [reasonably] appear to him necessary for keeping the peace, for preventing crime or from protecting property from criminal injury.”

McCann reasserted that a police officer does not have to tell the person the offence for which they are being arrested – rather than telling them the act for which they are being arrested. At paragraph [28], the judgment stated that it was not an essential condition of lawful arrest that a constable should formulate any charge at all, much less a charge which may ultimately be found in an indictment. Further to this, it also stated at [31] that it was not necessary for an officer to have the correct offence in mind at the time they give a direction to move-on or make a decision to arrest.

In relying upon this in Holmes, the High Court has confirmed that an officer may be acting in the execution of their duty if they exercise police powers either to prevent a breach of the peace or, alternatively, to prevent crime even where no unlawful act is being committed or where they have no specific and correct criminal offence in mind. Whether the Court of Appeal considers this confers too much power upon police officers remains to be seen. For now, however, to the benefit of defendant Chief Constables and the chagrin of claimants, this line of authority is solidifying.