• 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. 

  • From 1st May 2015, most of the provisions of the Police (Conduct) (Amendment) Regulations 2015 come into effect.  
  • The 2015 Amendment Regulations make changes to the Police (Conduct) Regulations 2012 (“the 2012 Regulations”).  
  • The major change is that misconduct hearings will now be held wholly or partly in public. Previously this was only exceptionally the case.  This is a very significant legal and practical change. 
  • An additional significant change is that the 2012 Regulations now specify that a police officer who makes a protected disclosure (as defined in the Employment Rights Act 1996) is not to be regarded as breaching the Standards of Professional Behaviour. 

  • The impact of the High Court decision in James-Bowen v The Commissioner of Police of the Metropolis on the relationship between a Chief Officer and those accused of wrongdoing in civil proceedings.
  • The High Court confirmed that, where a Chief Officer is defending civil proceedings brought solely against him/her, there is no duty owed to individual officers whose conduct is the subject matter of the claim.  
  • While this decision is perhaps unsurprising, the action highlights the uncomfortable position a constabulary will often find itself in where it is uncertain about the truth of an allegation made against an officer.  

  • What documents ought the Appropriate Authority to be disclosing to the officer, the panel and now the public?
  • One option is to supply the officer with the IO’s report “warts and all” with all statements and documents relating to the officer, together with an invitation to the officer either to agree duplication of service on the panel, or service of redacted material.
  • Adopting such an approach may avoid unnecessary arguments about bias and recusal on the grounds of prejudice.
  • However, it is attended by the risk that a complainant, or the IPCC, could complain that the AA is in breach of its Reg. 27(1) obligation. 

  • The majority of the Supreme Court have once again concluded that the police owe no duty of care in negligence to members of the public who suffer harm at the hands of criminals.  
  • However, the case of Michael v Chief Constable of South Wales [2015] UKSC 2 has confirmed that, although there may be no claim in negligence, the police may still be liable for a breach of Article 2 of the European Convention on Human Rights (ECHR).  
  • Such claims can be brought in the domestic courts under the Human Rights Act (HRA) 1998.  
  • The police may be held liable to victims (or their families) for clear failures to prevent a potentially fatal incident of domestic violence of which they have received specific warning.

A review of the reported legal decisions 2014 relating to policing demonstrates that many of the old risk areas for litigation continued to trouble chief police officers, and increasingly Police and Crime Commissioners (PCCs).   While it is difficult for a force to protect itself from litigation following unpredictable major events, such as the London riots, there are particular aspects of policing where forces continue to face repeated litigation, or trends suggest that claims are likely to increase in the future.  

The public scrutiny of police activity, and the rights of individual members of the public to bring action when their rights are infringed, are truly fundamental features of open democracy.   A certain amount of civil litigation is probably an inevitable feature of modern policing.  However, Chief Officers and PCCs ought to be examining carefully whether there are aspects of their police operations that are generating excessive civil claims.  Reducing the incidence of such claims ought to improve the standards of policing as well as reducing the annual drain on policing budgets caused by legal claims and their associated costs. 

A recent High Court case has recognised the heightened ethical and public law duty on Chief Officers when a Force provides references to outside bodies regarding officers who are leaving the police.  The duty is particularly pertinent to situations where officers leave under the cloud of potential or pending disciplinary proceedings. 

Following the death of Ian Tomlinson, the spotlight has been on internal police vetting procedures and how to ensure that information about an officer’s misconduct history is shared at the relevant points, such as when an officer seeks to transfer or re-join a force.  The decision in AB v A Chief Constable [2014] EWHC 1965 (QB) recognises a need to be just as alert, and where necessary to share information about, officers who are leaving the police force altogether.  

The obtaining and execution of search warrants remains an area of operational risk for the police. The margin for error is often narrow. In two cases in the last year the courts have provided useful and important clarification of issues concerning search warrants that had not previously been definitively determined. Further guidance has also been given on how search warrant applications should be drafted, and the impact that disclosure obligations have on the process. Judicial guidance can sometimes (understandably) be overlooked by officers, but will be relied upon in any subsequent challenge. This article highlights the guidance given in recent cases which has important practical implications.

On 7 August 2014 judgment was given in the Administrative Court in the  case of Woods and Gorton v Chief Constable of Merseyside Police [2014] EWHC 2784 (Admin).  The decision  has important implications for all forces in the operation of service confidence policies (SCP).  The Court held that:

  • decisions under the SCP were amenable to judicial review;
  • where reasons for the policy’s use in a particular case cannot be disclosed as a result of public interest immunity, then the threshold for judicial interference in the decision is very high;
  • the test is whether there is clear evidence of dishonesty, bias or caprice.

Central to the decision that the court should not intervene in this case was the finding at a separate hearing, by a different judge, that the reasons for the decisions under the SCP were subject to Public Interest Immunity (PII) and could not be disclosed.  

In Van Ek & Jukes v Director of Public Prosecutions (16th January 2013) the Divisional Court dismissed the appeal of two protestors who were convicted of breaching conditions imposed on the route of a procession under s.12 of the Public Order Act 1986 (the POA).

Van Ek and Jukes were participating in a march against education cuts in central London. A specific route had been determined, and the Metropolitan Police had imposed a condition on the procession that it follow this specific route. The route did not take the protestors into Trafalgar Square, where an anti-capitalist protest camp had been set up, and was still present at the time of the march. A police cordon had been placed across the junction between a street and Trafalgar Square to prevent marchers entering the Square.

US journalist, James Foley, was seized by armed men in Syria in November 2012 and was killed by a man with an apparently British accent. David Cameron condemned the barbaric and brutal murder and confirmed that: “it looks increasingly likely that [the perpetrator] is a British citizen.” He explained that intentions of the British government were “…to arrest and prosecute those who take part in this extremism and violence.” So what are the powers of the English authorities to prosecute a murder committed abroad by a British citizen, and do any such powers extend to foreign accomplices in that murder? 

Aaron Rathmell has prepared a useful summary of changes to the Police (Performance) Regulations 2012, Police (Conduct) Regulations 2012 and Police Appeals Tribunals Rules 2012.

You can find a copy of his 2012 Regulations Update here.

The changes are due to come into effect on 22nd November 2012, following the election of the Police and Crime Commissioners.

One of the categories of arrest that seems most likely to trigger a subsequent claim for damages is that following entry into domestic premises without a warrant. Claims for trespass, assault and false imprisonment are costly for the force, in terms of legal fees, time and resources, officer morale and reputation.

Claimants may feel particularly aggrieved: their privacy has been violated, and they will seize the moral high ground: an Englishman’s home continues to be seen as their castle. The courts are receptive to concerns about trespass and invasion of privacy. This was the case for centuries before the right to privacy and family life was enshrined in the Human Rights Act 1988 (Schedule 1, Article 8).

Over the years, judges have given firm guidance to constables, imposing a high legal threshold, for crossing the threshold into a person’s home. Nevertheless, the frequency with which civil claims are brought, and need to be settled, suggests that some confusion lingers. This may be because some of the case law is counter-intuitive; or perhaps the guidance is simply not being heeded, for instance because of poor training.

5 May 2014

James Berry provided evidence to the House of Commons Home Affairs Committee on Police and Crime Commissioners’ (PCCs’) powers to suspend and remove Chief Constables and the role of Police and Crime Panels in scrutinising PCCs. His submission can be found here [insert link to attached document].

James’ evidence was quoted in the Home Affairs Committee’s Report “Police and Crime Commissioners: progress to date” which can be found here.

In R (Commissioner of Police of the Metropolis) v Central Criminal Court & (1) Guilfoyle & (2) Crown Prosecution Service. the High Court quashed an order purporting to lift a sex offender’s notification requirements as the Central Criminal Court had no power to make the order.

Sections 91A and 91B of the Sexual Offences Act 2003 form part of the new regime for the review of indefinite notification requirements for sex offenders. In outline:

  • an offender who has been made the subject of an indefinite notification order can apply to the local Chief Constable for a review of the continuing need to be subject to notification requirements.
  • The Chief Constable has to notify certain public bodies, such as the local probation service and the Home Secretary.
  • If the Chief Constable refused to remove the notification requirements, there is a right of appeal to the Magistrates’ Court.
  • Importantly, a person cannot apply until 15 years have elapsed if they were an adult at the time of the original notification requirement, or 8 years if a juvenile.

The new regime came into effect on 30th July 2012.

Can pre-emptive detention, purely to prevent a person committing an offence or a breach of the peace, where they have not yet committed an offence, be lawful under Article 5 of the ECHR? In R (Hicks) v Commissioner of Police of the Metropolis [2014] EWCA Civ 3 the Court of Appeal has said, “yes”: it may be lawful under Article 5(1)(c), provided that at the time of the arrest there is an intention to take the arrested person before the courts. It may also be lawful under 5(1)(b) in certain circumstances, not closely defined in the judgment.

This post, which originally appeared as an article in Police Professional, examines the implications of two recent cases concerning police liability for breach of Article 2 and explores the different vulnerability of the police to common law negligence claims and claims under Article 2 with respect to operational failures.

In R (L) v Chief Constable of Cumbria [2013] EWHC 869 (Admin) a teacher successfully challenged the Chief Constable’s decision to disclose certain information about him for the purposes of an Enhanced Criminal Record Certificate. The Court’s decision is instructive for disclosure officers because of the comprehensive summary of the relevant principles. It is also instructive for investigators, in terms of the solemnity required of them when asked to comment on allegations.

In Sarjantson v Chief Constable of Humberside Police [2013] EWCA Civ 1252 the Court of Appeal found that the police owed a duty under Article 2 to take reasonable steps to respond to a 999 call reporting that a group of youths were attacking someone, regardless of whether the victim was identified or identifiable to the police.

In Finnigan v Chief Constable of Northumbria Police [2013] EWCA Civ 1191 the Court of Appeal found that when police officers wants to carry out a search a deaf person’s home, they have to make reasonable adjustments by considering what is reasonable for deaf persons as a class rather than the deaf person whose home is being searched.

In Mitsui Sumitomo Insurance Co (Europe) Ltd & Ors v Mayor’s Office for Policing and Crime [2013] EWHC 2734 (Comm) the Court decided that damage to a warehouse and the goods within it caused during the 2011 riots fell to be compensated under the Riot Damages Act 1886, but that consequential losses of profit and rent were not recoverable.

In R (Chief Constable West Yorkshire Police) v IPCC & Armstrong [2013] EWHC 2698 the Divisional Court found that an IPCC report, which concluded that a police officer had behaved unlawfully, had gone beyond the statutory ambit for IPCC reports, was unlawful, and so was quashed.

In R (TD) v Commissioner of Police for the Metropolis & Secretary of State for the Home Department [2013] EWHC 2231 (Admin) the Divisional Court found that the retention of an “NFA’d” complaint of sexual assault by the Claimant on police databases for 9 years was not, on the facts of the case, a disproportionate interference with the Claimant’s Article 8 rights.

In Commissioner of Police of the Metropolis v Police Medical Appeal Board and David Walther [2013] EWHC 1203 (Admin) the Court gave further guidance on the assessment of police injury awards where an underlying degenerative condition has been affected by an injury on duty. The Court concluded that an approach based on acceleration or aggravation is not appropriate. If, at the time when the question is referred to the Selected Medical Practitioner there is a disablement which is permanent, and if the duty injury caused or substantially contributed to that disablement at that time, the right to receive an injury award arises.

In R (on the application of A) v Chief Constable of Kent [2013] EWHC 424 (Admin) the Court decided that the Defendant’s disclosure, in an enhanced criminal records check [“ECRC”], of allegations of neglect and ill-treatment made against a nurse, was unlawful and amounted to a breach of Article 8 ECHR. The wrong legal test was applied by the Defendant and the allegations had been shown to be unreliable (and had not been acted on by a number of bodies).

In Mengesha v Commissioner of Police of the Metropolis [2013] EWHC 1695 (Admin) the High Court made explicit some of the limitations on how people who have been lawfully contained may be treated, in particular the imposition of conditions for their release.

In R (Cousins-Chang) v (1) Secretary of State for the Home Department and (2) The Commissioner of Police of the Metropolis [2013] EWHC 982 (Admin) the Court ruled Code C of PACE to be unlawful insofar as it allows 17 year-olds in police detention to be treated as adults.

This post, which originally appeared as an article in Police Professional examines the implications for police forces of the Police (Property) Act 1897, civil claims for damages, potential pitfalls and practical steps that can be taken to reduce the risk of claims.

Police forces seize and retain huge quantities of property each year. Real problems can arise when property is retained for longer than necessary. The rise in value of electronic items and computers seized makes this a significant area of financial risk – a fact that many forces have not yet fully grasped.

The statutory machinery for seeking the permanent detention of assets under the Proceeds of Crime Act 2002 or the Powers of Criminal Courts (Sentencing) Act 2000 is normally the domain of a force’s financial investigators and it is not addressed in this article.

As the civil courts are being exhorted to take an ever more stringent stance on proportionality, the recent Court of Appeal decision in Lorenzo v The Chief Constable of the West Midlands [2012] EWCA Civ 1863 is a timely reminder of the importance of providing a cautious, realistic time estimate for civil jury trials. It contains a number of other painful lessons to be learned for jury trial preparation.

In R (on the application of Monger) v Chief Constable of Cumbria [2013] EWHC 455 (Admin) the Administrative Court found that Cumbria Police’s decision to dismiss a Special Constable for misconduct matters was unlawful because the procedure in the applicable Police (Conduct) Regulations 2008 was not followed.

In Baker v Police Appeals Tribunal [2013] EWHC 718 (Admin) the Administrative Court refused to deprive an officer the benefit of a mistake made by the PAT when the PAT attempted to correct that mistake after it was “functus officio”.

In Alleyne v The Commissioner of Police of the Metropolis [2012] EWHC 3955 (QB) the High Court awarded damages to a householder accidentally injured during a forced entry by multiple police officers executing a search warrant.

In ZH v Commissioner of Police for the Metropolis [2013] EWCA Civ 69 the Court of Appeal found that the police had acted unlawfully, violated an autistic boy’s human rights and discriminated against him by not having proper regard to his condition.

In the second of a two-part article for Police Professional George Thomas and Cecily White examine procedures and safeguards that may assist in establishing an appropriate standard for the investigation of all stalking allegations following a review of the existing criminal and civil law relating to stalking.

In the first of a two part article for Police Professional George Thomas and Cecily White examine how recent legal developments make a review of the existing criminal and civil law relating to stalking timely.

In R (Commissioner of Police of the Metropolis) v Central Criminal Court & (1) Guilfoyle & (2) Crown Prosecution Service [2013] EWHC 179 (Admin) the High Court quashed an order purporting to lift a sex offender’s notification requirements as the Central Criminal Court had no power to make the order.

In AKJ & others v Commissioner of Police of the Metropolis & others [2013] EWHC 32 (QB) the High Court determined the appropriate tribunal to try various claims brought by political activists who allege they were deceived into entering sexual relationships with undercover police officers.  

By Oliver Williamson (who appeared in this case with John Beggs QC)

The Administrative Court has given important guidance on the interpretation of Regulation 21 of the Police (Conduct) Regulations 2008 in R (Bonnard) v Drusilla Sharpling & Cleveland Police Authority [2012] EWHC B24 (Admin).

A search warrant application before the magistrates’ court can take a matter of minutes; the search itself a matter of hours. But when a claim is brought against the police for the way in which a warrant was obtained or executed, the consequence can be long, drawn out and costly litigation. Police forces risk paying out compensation for trespass to property, breach of Article 8 and malicious procurement of a search warrant.

On 22 November 2012 the Police (Complaints and Conduct) Bill had its first reading in the House of Commons. You can follow the progress of the Bill, which is being fast tracked through Parliament, here. Introducing the Bill the Home Secretary said:

“I have today published fast-track legislation that will enable the IPCC to conduct a thorough, transparent and exhaustive investigation into the Hillsborough disaster…. These enhancements are being made at the request of the IPCC and will ensure they can investigate the conduct of the police at Hillsborough in depth and without delay….” 

From Sunday 25 November 2012, two new offences have come into existence in England and Wales relating to stalking. There is also a new power of entry and search for the summary stalking offence.

The offences are introduced into the Protection from Harassment Act 1997 by s.111 of the Protection of Freedoms Act 2012.

Section 2A of the Protection from Harassment Act 1997 (‘the Act’) creates the offence of Stalking (a summary only offence), while s.4A creates the offence of “Stalking involving fear of violence or serious alarm or distress”, triable either way. The new offences do not criminalise behaviour that was previously lawful, but are targeted at the particular type of harassment that also constitutes stalking.

In the second article for Police Professional by members of the Serjeants’ Inn Police Team Debra Powell and Susanna Rickard, argue that, in wake of recent cases, there needs to be clear guidance for joint working between police and health services for the care of people suffering from mental disorder.

The Divisional Court has required the Director of the Serious Fraud Office to pay the Claimants’ costs on an indemnity basis following their successful challenge to search warrants obtained by the SFO.