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.
You may recall the slightly shaky foundations on which the case of McCann v CPS [2015] EWHC 2461 was based. I wrote about one element of the case here – that being that it was not an essential condition of a lawful arrest that a constable should verbally formulate a charge. I left the other part of the judgment well alone – the part that stated an officer’s arresting a person for obstructing a public highway was lawful even where it was not a public highway – being a bit doubtful as to the reasoning.
Nevertheless, the latest decision in Ahmed v CPS embraces it. Here, a county-court had made a modern version of an ASBO against the Claimant – which had been dubbed an Injunction to Prevent Nuisance and Annoyance or (IPNA). But actually, it had not. It purportedly made an order pursuant to repealed provisions of the Housing Act 1996 instead of the in-force enactments in the Anti-social Behaviour, Crime and Policing Act 2014. There was, therefore, no valid order.
The judge held that an officer who is acting in accordance with an injunction issued by a civil court, when that injunction is coupled with a power of arrest, is acting in accordance with their duty if they act in accordance with the injunction and power [9]. Relying on McCann, he then went further and said that where a police officer genuinely and reasonably believes that there is a valid injunction and that someone has breached it, they will be acting in the course of their duty if they arrest someone in consequence – whether or not the injunction is valid [10].
The judge held that to hold otherwise would expose police officers to “an extremely difficult state of affairs” and that it could not be expected that officers could check the validity of such orders before acting [11].
This case seems to have argued with some brevity – given that the whole judgment is disposed of in eleven paragraphs. It also makes reference to the “economy” of the submissions. As I said above, it also looks like a judgment given ex tempore. Practitioners will note the judge’s telling us there had not, to his knowledge, been much judicial scrutiny of what amounts to an officer’s acting “in the execution of their duty”. The only case mentioned was that of Rice v Connolly [1966] 2 QB 414 – with which all police-law practitioners will be familiar.
I do not know what submissions were made in the hearing and so can only speculate on what was argued. Interesting questions arise from this – if they were not already ventilated. Such as, the situation where an officer genuinely believes that there is a term in the injunction prohibiting a specific act when, in fact, there is not. Or where it has expired. I well appreciate that those questions of fact are easier for a police officer to explore (and know) rather than the potential much more technical question of whether the injunction is lawfully made per se – where the court has identified the wrong enactment. And there may be other arguments as to the status of a court order, its validity and the acts taken pursuant to it until the order is set aside.
That said, this decision is undoubtedly helpful to the police, for the time being.