The courts have given another judgment, Ahmed v Crown Prosecution Service [2017] EWHC 1272 (Admin), which helps the police in considering what actions fall within the execution of their duty. In short, where a police officer genuinely and reasonably believes that they are authorised by a court order to arrest a person for breach of an injunction and that the person is in breach of it, they will be acting in the course of their duty if they arrest that person. Even where there is no valid injunction. Sort of. The case is not available on Bailii - possibly because it was given ex tempore. It is on Lawtel and Westlaw. 

The David Hare screenplay for the recent film Denial contains the following advice to the client: ‘stay seated, button your lip, and win.’ This article seeks to plot a path for advocates to winning in large scale discrimination claims in the employment tribunal, based on the writer’s long experience of the ET and, more recently, briefs to act for the respondents in two high stakes cases, AB -v- A Chief Constable[i] and Aubrey -v- The Chief Constable of Northumbria Police[ii]. The suggested lessons apply to all types of large-scale claim in the ET.

The debate on whether there is a difference between honesty and integrity continues apace in Rhys Williams v Solicitors Regulatory Authority [2017] EWHC 1478 (Admin). I expressed my opinion here that there was a material difference between the two and that the decision of Mostyn J in Malins v Solicitors Regulatory Authority [2017] EWHC 835 (Admin), that the two were synonymous, was not correct - at least for the purposes of the Police (Conduct) Regulations 2012. The Divisional Court (the President of the QBD presiding) has now similarly deprecated it.

The court has also restated the principles concerning the requirement that misconduct allegations be properly pleaded and put to witnesses - with a steer that panels should look to the substance rather than technicalities. 

One of the biggest and most controversial senior employee discrimination claims in recent years, Aubrey v. Chief Constable of Northumbria Police, has come to a close, at least in relation to liability. The Employment Tribunal gave judgment for the Respondent in November 2016, which was confirmed in the Employment Appeal Tribunal in May 2017.

The case is exceptional because of its complexity, the value of damages had Ms Aubrey been successful, and the high reputational stakes for all involved. The successful respondent was represented by Angus Moon QC and Aaron Rathmell of the Serjeants’ Inn employment law team. 

Lavender J in MLIA & CLEL v Chief Constable of Hampshire [2017] EWHC 292 (QB) has offered helpful guidance on the application of the limitation defence for human rights claims, in a case which failed to meet the threshold for engaging the investigative duty under Articles 3 and 8 of the Convention.

The Claimants were a mother and daughter who had been victims of abusive, aggressive, violent and threatening behaviour perpetrated by the First Claimant’s former partner prior to November 2005. Following an order by Master McCloud that there should be a trial of liability, the issues before Lavender J were:

1. Whether the claim had been commenced within “such … period as the court … considers equitable having regard to all the circumstances” pursuant to section 7(5)(b) of the Human Rights Act 1998;

2. Whether Article 3 and/or Article 8 were engaged and, if so, whether the Defendant had acted in a manner which was incompatible with the duty imposed by those Articles, in particular by failing to investigate the Claimants’ allegations.

It sometimes vexes police lawyers – how the police can be a prosecutor for the purpose of malicious prosecution when it is the Crown Prosecution Service that makes the decision to prosecute. Further, it has not always been easy to identify what acts of officers can result in liability for misfeasance in a public office. In Rees v Commissioner of Police for the Metropolis [2017] EWHC 273 (QB), Mitting J explained both of these - disagreeing with some previous cases and explaining others.

The judgment in Re Ward of Court [2017] EWHC 1022 (Fam) answers with a resounding “no”, the question of whether the court’s consent is required before the police can interview a ward of court. A simple point, one might think, but there was, according to Sir James Munby, President of the Family Division, a “startling lack of clarity in the law” on this issue [5].

The recent decision of the High Court upon an application for judicial review of a Police Medical Appeals Board (‘PMAB’) decision in the case of R (Fisher) v (1) Chief Constable of Northumbria (2) PMAB [2017] EWHC 455 (Admin) highlights the pitfalls in the assessment of a former officer’s uninjured earning capacity when reviewing the level of an injury pension under regulation 37 of the Police (Injury Benefit) Regulations 2006.

A recent decision from the High Court in Chief Constable of Thames Valley v Police Misconduct Panel [2017] EWHC 923 (Admin) says that misconduct panels can now be judicially reviewed by Chief Constables - but gives rise to a number of new and potentially awkward questions.

Whether a Chief Constable had standing to apply for judicial review against a decision of a misconduct hearing panel had not, until now, been a question that anyone wanted to ask.  Before the recent advent of legally qualified chairs, hearing were presided-over by either an Assistant Chief Constable (ACC) or a Deputy Chief Constable. Plainly, it would have been (almost) unthinkable for a Chief Constable to seek to bring a judicial review against a decision that one of their own chief officers had made. 

Another month, another decision on the meaning of honesty and integrity. Given that the Standard of ‘Honesty and Integrity’ is considered primus inter pares in relation to the other Standards, in that a breach of it puts an officer at serious risk of dismissal, what amounts to this is important – for officers and presenting authorities.

There has been a number of cases addressing this over the past couple of years. They have focused on the meaning of integrity as opposed to honesty – whether integrity is something different to honesty and, if so, whether it is measured subjectively or objectively. This post will suggest that integrity is something different to dishonesty and is measured objectively rather than subjectively.

Not a long post - just a short note about damages awarded in a recent police civil action of (1) Stewart (2) Chergui v The Commissioner of Police of the Metropolis [2017] EWHC 921 (QB). Now updated to include the costs decision.

R (Duggan) v Asst Coroner North London and (1) Metropolitan Police Commissioner (2) Serious Organised Crime Agency (3) IPCC (4) DS Belfield (5) DC Faulkner (Interested Parties)  [2017] EWCA Civ 142 (judgment here

Mark Duggan’s fatal shooting by Metropolitan Police officers gave rise to widespread public disorder across the country. The inquest jury’s finding that the cause of death was “lawful killing” has, unsurprisingly, remained matter of public debate and given rise to several legal challenges.

Police officers who bring employment tribunal claims often seek disclosure of documentation prior to, or shortly after, the issuing their claim, by making a subject access request pursuant to Section 8 of the Data Protection Act 1998 in the hope that they may uncover information which assists their case. Responding to such requests can be difficult and time-consuming. The legislation is complex and, in the digital age, the sheer number of documents, which of course includes electronically held data, can be overwhelming. The question is often asked 'on what basis can the information be withheld?

The case of McCarthy v Chief Constable of Merseyside Police [2016] EWCA Civ 1257 provides an interesting analysis of the tort of battery, trespass ab initio and use of reasonable force relating to use of a taser in a policing context. The Court of Appeal judgments provide clear recognition of the difficulties and realities faced by police officers in the context of fast moving, violent incidents in which fine judgments are difficult and provide important guidance as to the correct factual and legal approach in such cases.

On some legal databases, it appears that paragraphs 19B-D of the Police Reform Act 2002 (PRA) have been repealed and that paragraph 19A has been replaced. The problem with this is (i) that the replacement provides for no severity assessment to be reformed and (ii) contrary to what appears on some legal databases, the paragraphs have not, actually, been repealed or replaced (yet). 

The Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes C, D and H) Order 2017 came into effect on 27 February 2017. The Order brought into force three revised codes of practice under the Police and Criminal Evidence Act 1984 (“PACE”), which supersede the pre-existing Codes of Practice. The revisions to Code C and Code H implement amendments to PACE made by the Criminal Justice and Courts Act 2015 (“CJCA”), which defines a “juvenile” for the purpose of detention as a person who is under the age of 18, rather than under the age of 17. This now requires a 17 year-old to be treated as would be a 16 year-old rather than an adult of 18 years or over.

The Policing and Crime Act 2017 heralds significant change to the powers of police staff and volunteers, going beyond those of Police Community Support Officers. 

When the Act comes fully into force, the categories of employees with delegated powers will be streamlined from four to two: “community support officer” and “policing support officer”. The latter will cover the old categories of investigating, detention and escort officers. There are also two categories of volunteers: “community support volunteer” and “policing support volunteer”.

In relation to policing support officers and policing support volunteers, chief officers will be able to confer upon them any policing power, except for defined core powers. In other words, the position under the PRA of designation from a limited menu of powers will largely be reversed and staff could be designated with a wider variety of powers, duties and functions.

Mark Ley Morgan successfully acted for the Chief Constable of Nottinghamshire Police at first instance and on appeal in Frugal v Nottinghamshire Police [2017] EWCA Civ 86 - a civil action concerning arrest and detention.

Many police practitioners will pause on learning that they are instructed in a case involving an arrest for breach of the peace. The reason being - that the law on when an arrest can be made is not always well understood by arresting officers. That is not to be discourteous to the police. Rather, it is a recognition of how complicated this issue can be. The Supreme Court in the case of R (Hicks) v Comr Metropolitan Police [2017] UKSC 9 gives some assistance to the police where they seek to arrest persons in light of an imminent breach of the peace and provides a simpler statement of the law than did the Court of Appeal.

It is not uncommon for police officers to justify the necessity of an arrest by reference to PACE s24(5)(e) - to allow the prompt and effective investigation of an offence or the conduct of the person in question. The case of R (TL) v Chief Constable of Surrey [2017] EWHC 129 (Admin) considers the extent to which this permits arrest for the purpose of imposing bail conditions and conducting a search.

The value of a Coroner’s inquest in opening up matters to public scrutiny is clearly demonstrated by this highly unusual application by the Chief Executive of the IPCC in R (IPCC) v IPCC [2016] EWHC 2993 (Admin) who, following a searching inquest, brought proceedings against his own organisation to overturn its flawed report into police conduct.

The Police Appeals Tribunal should take care not to go behind clearly expressed statements made by police hearings tribunals. It should also take care as to the order of witnesses where hearsay evidence is being admitted: Squire v (1) The Queen (CC Thames Valley Police) (2) PAT [2016] EWCA Civ 1315.

Senior Coroners still smarting from being described as holding "a relatively lower judicial office” by Mr Justice Singh in the Norfolk Coroner v AAIB case last month have now been dealt a second blow by Cranston J when he made it very clear in Secretary of State for the Home Dept v Senior Coroner for Surrey [2016] EWHC 3001 (Admin) that not only are Senior Coroners, as a category, not among those able to see sensitive material related to issues of national security, but that the Secretary of State can rely upon the assertion of a general policy not to provide Coroners with such material and so does not have to provide any evidence that disclosure to the particular Coroner will in itself result in a real risk of serious harm to national security.

In R (Darren Williams) v Police Appeals Tribunal [2016] EWHC 2708 (QB), Mr Justice Holroyde was asked to consider whether ‘the Salter principle’ – that personal mitigation carries diminished weight in cases of police or professional misconduct – applies to all breaches of professional standards, not just honesty and integrity. He found that it did – but that all mitigation must properly be weighed and considered.

How can the police obtain a suspect’s medical records pre-charge?  Pre-charge it is not possible to obtain a witness summons under s.2 of the Criminal Procedure (Attendance of Witnesses) Act 1965.

Can a Production Order under Sch 1 para 4 of Police and Criminal Evidence Act 1984 ('PACE') be applied for instead?  The answer seems to be “No”.

A person who was strip-searched in police custody and then moved whilst unclothed was not treated contrary to article 3 or article 8 where it was due to his own behaviour, the Court of Appeal has held in Yousif v Commissioner of Police for the Metropolis [2016] EWCA Civ 364.

The appellant was originally from Iraq where he had suffered at the hands of the authorities. He had a personality disorder, post-traumatic stress disorder and paranoia. He had been arrested following an incident of ‘road rage’. He was taken to Paddington Green Police Station, where he remained for some 12 hours. When he was being booked into custody the appellant said ‘yes’ when asked whether he had tried to commit suicide in the past but then refused to give details or respond when asked whether he was feeling suicidal. The custody officer decided that the appellant should be stripped searched and that all of his clothes should be taken from him so that he was left naked in a cell that was constantly monitored by CCTV. During his detention he was moved from one cell to another whilst naked.

Over recent years the problems of monitoring, regulating, banning and criminalising the sale of new psychoactive drugs have been recognised. These substances may be every bit as dangerous as drugs that are already controlled substances under the Misuse of Drugs Act 1971 (“the MDA”). However, the rate at which new chemical formulations are devised means that a system of regulation such as the MDA, based on a specific identifiable substance, simply cannot keep up.

In the Queen’s Speech on 27 May 2015, the government announced that, “new legislation will … ban the new generation of psychoactive drugs.” The new regime seeks to classify substances not by their specific formulation (as under the MDA) but by their effect on the brain.

The Claimant, a senior officer, brought Employment Tribunal proceedings seeking substantial compensation from a Police Force which they alleged had discriminated against them on the grounds that they were gay, victimised them and treated them unfavourably because they werethey were a whistleblower. All the claims were dismissed on 22nd February 2016. The ET anonymised the names of the parties in order to protect their identities.

The thrust of the Claimant’s claims before the ET were that the Force investigated them, brought misconduct proceedings and intended on sending a harmful reference to their new employer because they had made allegations discrimination, had “blown the whistle” and was gay. As a result of their alleged treatment, the Claimant resigned, claiming automatically unfair constructive dismissal (under s.103A ERA).

A police officer shot an unarmed suspect, wrongly thinking he was aiming a gun. A claim for damages in Davis v Commissioner of the Police of the Metropolis [2016] EWHC 38 (QB) failed because the officer was reasonably and honestly mistaken and acted in self-defence. Briefing the officer with inaccurate information was not negligent because the suspect was not owed a duty of care.

The story of PC David Rathband, shot and blinded by Raoul Moat on 4th July 2010, and his subsequent suicide in February 2012, is one of the most traumatic for the police service in recent years. Prior to his death he had commenced legal proceedings against the Chief Constable of Northumbria Constabulary arising out of the shooting. The claim was carried on after his death by his brother and sister, on behalf of his dependants and estate.

Two weeks ago the High Court gave its judgment in Rathband v Chief Constable of Northumbria [2016] EWHC 181 (QB). It dismissed the claim in negligence brought against the Chief Constable of Northumbria Police. In doing so the Court had to determine where the balance lay between the competing principles that (1) a Chief Constable owes a duty of care to serving officers, and (2) the immunity from suit in negligence that a Chief Constable generally enjoys in relation to operational decisions.

Last October Gilbart J gave judgment in Mohidin & Ors v Commissioner of Police of the Metropolis & Ors [2015] EWHC 2740 (QB), a case involving allegations of racially aggravated assault, unlawful arrest and false imprisonment against four officers within the Metropolitan Police Service. The litigation was unusual in that the Commissioner had opted to bring Part 20 claims against the individual officers, who were separately represented at the trial. In the recent, supplementary judgment ([2016] EWHC 105 (QB)), Gilbart J has allowed the Commissioner’s claims for indemnity in respect of damages and costs against the officers who acted unlawfully.

The recent case of Ewing v Cardiff and Newport Crown Court [2016] EWHC 183 (Admin) relating to restrictions on members of the public taking notes in criminal hearings in the Crown Court will have application in relation to similar restrictions in police misconduct hearings. The starting position is that note taking will be permitted - and a chair should not require observers to ask for permission before making any.

Last week the European Court of Human Rights (ECtHR) decided in the case of Barbulescu v Romania [2016] ECHR 61 that it was not a breach of an employee’s Article 8 rights for his employer to access a private, web-based email and messenger account. The case was widely reported in the press as a major development in the relationships between employers and employees. It has obvious ramifications for many aspects of policing, including officer’s conduct at work and the investigation of it by supervising officers or the Professional Standards Department.

So what does the decision actually change? 

In a case which serves as a reminder that an inquest should not be seen as a substitute for a public inquiry, the Admin. Court in R (Speck) v HM Coroner for York & (1) NHS England (2) MEDACS (Interested Parties) [2016] EWHC 6 has held that, where a coroner conducting an Art 2 inquest decides that a factor could not even arguably be said to have made any real contribution to the death, then there is no discretion, or indeed power, to investigate that issue. Coroners’ investigatory powers arise from their statutory duty under the Coroners and Justice Act 2009 s.5 and their discretion is limited to investigating only those factors that might arguably have contributed to a death. It would be “wrong in principle” to “go into issues of policy and resources with which an inquest should not be concerned”.

Public hearings in police misconduct hearings are new. As a result, panel chairs are just working their way around what is required and when to exclude the public. The bar for excluding members of the public and not naming officers is very high – as made clear by Solicitors Regulation Authority v Spector [2016] EWHC 37 (Admin). It concerns solicitors but the principles are transferable (with some key caveats, which I have not gone into here). The result is that there will be a strong presumption that police misconduct hearings be heard in public, including permitting all members of the public and the naming of all persons involved. A panel chair does have a power to restrict the public elements of a hearing but only in exceptional circumstances. 

  • Section 59 of the Criminal Justice and Police Act 2001 empowers the Crown Court to authorise continued detention of property seized pursuant to a warrant that is, or might be, unlawful.

  • The High Court has recently confirmed that an application pursuant to section 59 may be made notwithstanding that there may be outstanding judicial review proceedings challenging the legality of the warrant.

  • An inquest jury should have been called where a vulnerable witness fell ill and died in a police station.

  • The requirement for a jury where death results from the act or omission of a police officer is a ‘low threshold’.

  • The threshold can be cleared by suspicion that the police could or should have done more to prevent the death of someone who ‘needed looking after’.

  • Injunctions to prevent gang-related violence, pursuant to Policing and Crime Act 2009 section 34.

  • Orders are not confined to restraining particular conduct relating to the individual.

  • The court is entitled to consider the conduct attributed to the gang as a whole.

  • A football banning order must apply to all regulated matches.

  • A magistrates' court may not permit a person to attend some matches but not others.

  • Attendance at a football match does not engage article 8.

  • The High Court assessed damages for three Claimants at £2,500, £11,950 and £7,000.
  • Police officers’ denying the allegations against them during disciplinary investigations and a criminal trial could not sound in aggravated damages;
  • No damages for being cross-examined robustly by the officers’ counsel in criminal proceedings.

  • It is not an essential condition of a lawful arrest that a constable should verbally formulate a charge.
  • What is required is that the arrested person be told the act for which they are being arrested.

  • It is a legitimate aim for police forces “to achieve efficiency by reducing officer numbers with certainty”.
  • Police Forces had no other means of achieving certainty in their staff reductions other than by the use of A19, due to the limited ways in which officers can be dismissed. 
  • This finding demonstrates that the crucial question of whether a PCP is justified may depend on how the “legitimate aim” is phrased. 

In the recent decision in Zenati v (1) Commissioner of Police of the Metropolis (2) Crown Prosecution Service [2015] EWCA Civ 80; [2015] QB 758, the Court of Appeal held, for the first time, that the police may be liable to a suspect remanded in custody for a breach of article 5 where they fail to provide the court with all relevant, material information when the court makes a decision to remand the suspect in custody; to act with expedition when conducting ongoing investigations or when responding to requests from the CPS whilst the suspect remains remanded in custody.

  • When ought an officer be treated as being disabled for the purposes of making adjustments under the Equality Act 2010?
  • The relevance of restricted duties, substantive adverse affect, whether the condition is long term and the impact of adjustments and treatments.

  • The taking of witness statements by the police and the making of applications for witness summons’ falls within the core immunity in Hill;

  • Such actions do not demonstrate a voluntary assumption by the police of a particular duty of care to the maker of the statement;

  • Article 8 provides no greater protection than article 2 and it will be difficult for a Claimant to succeed only on the former.