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.
The Claimant had been put to the floor and handcuffed in the hallway of his flat by officers looking for a murder suspect and had sustained injury to his face and ankle while on the floor. In summary:
Negligence
The Judge found that:
- the police owed the Claimant a duty of care to take reasonable steps to avoid causing him injury during the entry;
- the detaining officer was required to take all reasonable physical steps to protect him from injury;
- the other officers following were required to take at least minimal care to protect him from injury as they passed him in the hallway;
- even though rapid entry was essential to secure all parts of the flat, the injuries had been sustained by want of the minimal standard of care;
- the Constables Protection Act 1750 did not provide a defence to police officers who caused injury in these circumstances through want of care.
The Judge’s reasoning with respect to negligence was as follows:
“ [141] There are various formulations of the test for existence of a duty of care, of which one is the three stage test in Caparo Industries PLC v Dickman [1990] 2 AC 605. In the context of possible physical harm (i) was the Defendant able reasonably to foresee damage as a result of the relevant actions; (ii) was the relationship between the Claimant and the Defendant sufficiently proximate; (iii) was it fair just and reasonable in the circumstances of the case to impose a duty of care on the Defendant?
[142] It is trite that the police owe a duty of care thereby to prevent harm to those in their custody: e.g. only Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 at 372 F–G where it was conceded that the police owed a duty of care to take reasonable steps to prevent those in their custody from committing suicide. The rationale for the duty of care being owed to those in police custody is that “by the fact of detention the man is prevented from….. escaping danger” (Vellino v Chief Constable of Greater Manchester Police [2002] 1 WLR 218 CA).
[143] I consider that the Defendant was able to and in fact did reasonably foresee the possibility of harm to an occupant of the premises, e.g. the briefing note for Operation Docena stated,
“all person/s on premises to be secured”; the nature of the entry would be rapid with multiple officers in a confined space; Counsel for the Claimant identifies a Risk Assessment completed prior to the incident which refers to the possibility of injuries requiring first aid treatment being suffered by persons including members of the public. In my respectful judgment it is self evident that there was sufficient proximity between the Claimant and the Defendant and that it is fair, just and reasonable to impose a duty of care in the circumstances.
…
[145] … I conclude that the Defendant did owe a duty of care to take reasonable steps to protect the Claimant from and/or to avoid injury to the Claimant whilst detained on the ground and that such is not barred by the 1750 Act.
[146] One can readily envisage that the scope of the duty of care may be conditioned by the circumstances, including intensity of demand upon the police officers to secure the flat and of course, the inherent possibility of accidental injury which is just that: accidental, not negligent. In assessing the scope of the duty of care, and the reasonableness of the acts of the police officers involved, a balance needs to be struck between the public interest that not too exacting a standard should be required of police officers who are themselves on behalf of the public placing themselves in imminent possible danger to limb or life itself and the public interest in protection from injury of individuals who are not themselves the object of the pursuit and who are themselves innocent of any criminality.
[147] If the occupant of a flat is taken to the floor when heavily equipped police officers are about to make rapid entry in the closest possible proximity to him on the floor and he is secured by handcuffs to the rear and unable to protect himself, it is reasonable in my judgment to require that the officer detaining him takes all reasonable physical steps to protect him from injury, and for other officers to take at least minimal care as they pass in the few steps or strides to do so.”
Assault
A claim for assault was rejected on the basis that the injuries had not been inflicted deliberately, the detaining officer had had a reasonable, albeit mistaken, belief that the Claimant was being obstructive and the use of force to handcuff the Claimant, being reasonable and necessary, was therefore lawful. The Claimant’s contention that the force was unlawful because the entry and search were themselves unlawful, on the basis that s.16(5) PACE had not been complied with, was rejected on the facts.
False imprisonment
Although police officers do not have the power in these circumstances to forbid someone who is not under arrest from leaving, or speaking to or being spoken to by a partner or family member, it was proper for officers to seek to avoid the possibility of contamination or collusion between witnesses whose evidence might be significant, so long as it was done lawfully, i.e. by persuasion or encouragement of a witness to defer contact with another potential witness. The Judge said at [160] (emphasis added):
“It is important that police officers should not arrogate to themselves a power which they do not have, to forbid someone who is not under arrest from leaving, or speaking to or being spoken to by a partner or family. On the other hand, this was a murder investigation and in my judgment it is proper for police officers to seek to avoid the possibility of contamination, or collusion, between witnesses whose evidence might prove to be all important, so long as such is done lawfully. If the exercise is one of persuasion of a witness to defer contact, or encouragement of it, such is not to be criticised. The qualification I make, “so long as such is done lawfully”, is an important one.”
Commentary
This case provides useful guidance on the powers and responsibilities of police officers executing search warrants and emphasises that the very real urgency in securing premises when in search of suspects for serious offences does not absolve officers from exercising reasonable care to avoid injuring those they have cause to detain, or from complying with the strict requirements of PACE.