Case Study Suing For Unlawful Arrest Law Essay

The Client’s Problem. Mr. Andrew Barnham was stopped, searched and finally arrested on November 8, 2009 outside Stagshead pub on Byker Road. His description fitted that of another offender who had committed a robbery in a jewellery shop on Walker Street with high value jewellery missing e.g. expensive watches. Mr. Barnham believes that the stop and search powers exercised by the two constables along with the arrest that occurred later on at the Police station were unlawful. Furthermore, he insists that excessive force was used on him and on his property (his nose was badly bruised when his face was smashed on a wall and his front door was completely destroyed). Finally, he was unlawfully kept on custody without review of the detention time limits. Mr. Barnham wants compensation for the alleged damages along with an apology from the two constables.

Did PC Officers Smith and Jones lawfully stop and search the client?

Was the client lawfully arrested and at which point did it happen?

Did the constables use reasonable force during the arrest?

Did PC Smith lawfully enter and search the house of the client?

Can the client bring a claim against the two constables for the damages and for false imprisonment?

Key Words/ Phrases

Power to stop and search

Power of arrest/ reasonable grounds to suspect

Assault/battery/ Possible defences

Trespass to property

False imprisonment

Human Rights Implications

Police powers of detention and time limits

Legal Advice

Stop and Search

S.1(2)(a)(i) of the Police Criminal Evidence Act 1984 (‘PACE 1984) permits a police officer to conduct a search on any person for stolen or prohibited articles, providing the search is conducted in a public place (see s. 1(1)(a) of PACE 1984). The search can, however, only be carried out if the officer in question has reasonable grounds for suspicion that s/he shall find stolen items (see s. 1(3) of PACE 1984).The powers of stop and search are conditional, however, in that an officer carrying out a search must inform the suspect before the search commences of his name and police station. A failure to do so renders the search unlawful: see Osman v. DPP [] .

It is therefore my opinion that the stop and search of the claimant was unlawful for failure to comply with s.2(3) of PACE by informing the claimant of the police officers’ names and police station. It is noteworthy that it is irrelevant that the names of the PCs were already known to the claimant. This failure constitutes a breach of PACE.

The point at which the claimant was informed about the reasons for the stop and search was after all the above had occurred and only then PC Smith notified him that he wanted to ask some questions pertaining to a robbery which had occurred earlier that day. In my opinion therefore there is an arguable case that this failure renders the stop and searches a trespass to the person, because even if the search is later deemed reasonable, the claimant ought properly to have been informed: see Osman v. DPP1.

Lawfulness of Arrest

Any person may arrest anyone whom he has reasonable grounds for suspecting to be guilty of an arrestable offence (see s.24(5)(b) of PACE 1984). Further, an arrest amounts to the beginning of imprisonment: see Lord Simonds in Christie v. Leachinsky [] .

Providing that an officer has reasonable suspicion of an offence having been committed, he is entitled to make an arrest to interrogate the suspect: see Holgate-Mohammed v. Duke [] . The test for reasonable grounds for the arrest, however, is split into two parts, namely: (i) actual suspicion; and, (ii) reasonable grounds for that suspicion: see O’Hara v. Chief Constable RUC [] . In relation to point (i), the officers stopped the claimant and one of the officers (PC Smith) was given a description fitting the claimant’s, following a radio communication, before returning to search and arrest the claimant. This illustrates that point (i) of the present case may have been established. Secondly, the fact that the claimant did not stop when asked to, arguably constitutes grounds for reasonable suspicion (the second part of the test). It is noteworthy that a radio message is sufficient to amount to reasonable suspicion: see King v. Gardner [] ; DPP v. Wilson [] .

On the basis of the above assessment, it would appear that the test has been satisfied to make the arrest lawful. However, there are two further requirements for an arrest to be deemed lawful. An arrest is not lawful until a person has been informed of the facts and grounds for an arrest: see Dawes v. DPP [] . Moreover, we must consider whether the stop occurred before the radio, description was given to PC Smith. In this case then there was no reasonable grounds for suspicion; so the stop power that was exercised was certainly unlawful or even more was discriminatory for the suspect’s previous conviction.

The duty to inform ought to be done at the time of the arrest, but may be fulfilled before and after that moment: see Nicholas v. Parsonage [] . From the information available, the claimant was informed that he is potentially a suspect for a robbery at the time of conducting the search. However, he was not informed about the arrest despite being handcuffed. Further, no caution was given to the claimant at this point, albeit he was informed that he was going to be asked questions about a robbery occurring earlier that day.

Again, therefore, in my opinion the arrest is also arguably unlawful. The claimant was only informed he was a suspect for a robbery that took place at a jewelry shop on Walker High street at around 9:00pm, some 40 minutes after being arrested.

Use of Force

In this matter, there was also an issue as to the legality of the use of force by the police officers. Whilst being arrested, the claimant was forced and handcuffed, sustaining a blooded nose and broken glasses as a result. PACE requires (at s.117) that all police powers are exercised with reasonable force, or that only such force is used as is reasonable in the circumstances (see s.3, Criminal Law Act 1967.) Only force which is deemed necessary to ‘secure and subdue’ a suspect is permitted: see Allen v. Metropolitan Police Commissioner [] .

Further, handcuffs were used on the claimant. Handcuffs, however, may only be used on a suspect where they are ‘reasonably necessary to prevent an escape’: see Lockley [] .

Given that the claimant was resisting being searched and became angry and irate and commenced shouting at the officers, it would appear that the use of force may be viewed as reasonable by a court of law. Albeit, given that the arrest is arguable unlawful, the use of force may be viewed as a trespass to the person/assault or battery.

In any event, the use of excessive force does not render an otherwise lawful arrest unlawful: see Simpson v. Chief Constable of South Yorkshire Police [] .

Albeit the claimant was perfectly entitled to want to know the reasons for that he was being stopped and searched, he should not have displayed anger or irritation by the police carrying out their duty. In my opinion, however, given that the arrest is arguably unlawful for the above reasons, the use of force is also arguably unlawful and could constitute common assault / battery.

Entering the Premises

An officer may enter and search any premises where a person was immediately before the arrest (see s.32(2)(b)). This is intended to search for evidential material pertaining to the offence for which the arrest was enacted. It is a question of fact whether or not the police entered for this purpose: see Beckford [] .

On the evidence available, it is therefore lawful for the police to enter the premises of the claimant. However, when they arrived at the claimant’s house, PC Smith smashed the door down. Albeit the claimant was reluctant to hand over his keys, he did not refuse to give them to him, though.

For the above reasons, PC Smith could accordingly be guilty of criminal damage for forcing entry to the property.

Period in Detention

The claimant spent approximately 13 hours in detention before being released. Whilst detention is permitted under the law to assist in interrogating the suspect: see Holgate-Mohammed v. Duke. Under Code C, para. 1.1, it is stated that the leading principle is that all persons in custody are dealt with expeditiously and that they must be released as soon as there is no more need for detention. In this case, given that the claimant was not interviewed until 9:00am, after spending a night in the cells, it is arguable that this case was not dealt with expeditiously.

It can not be said that the investigations were impeded due to the claimant having been arrested in the evening and therefore a difficulty in locating the relevant witnesses to corroborate his statement because the claimant was only interviewed in the morning after spending a night in the cells. It is my opinion therefore that his period in detention was not dealt with expeditiously.

In addition to the above, there are further issues regarding the claimant’s period in detention. For instance, the claimant was not given any information about his rights, no medical assistance for his blooded nose throughout his period in detention, and no code of PACE to read.

A custody officer was required to determine whether or not there was sufficient evidence to charge the claimant with robbery as soon as reasonably practicable after he was detained. Despite this, however, he may detain a suspect for as long as is necessary to discharge this duty (see PACE 1984, s.37(1)). In my opinion, however, the claimant in this case was not interviewed until 9:00am, which would appear excessive given that the arrest was over 12 hours earlier.

The custody officer is also responsible for informing the suspect of his rights to have someone informed of his arrest, consult with a solicitor privately, the availability of free legal advice, consult the codes of practices and, more importantly, to provide the arrested person with a written notice of his rights and a caution that he is not obliged to say anything but what he does say may be given in evidence.

The written notice must set out minimum entitlements whilst in custody (see Code C, par. 3.2.) and minimum conditions of comfort whilst in custody. Albeit the claimant was advised about his right to a solicitor at the time of being arrested and he refused, none of the other requirements outlined above have been recorded on the custody record, which would constitute a further breach of PACE.

Albeit it ought to be mentioned that the custody officer is entitled to assume that the arrest is lawful and not question its validity: see DPP v. L [] .

Overall, a period of detention for a period of not more than six hours is deemed acceptable.

Further, a custody record is to be made in the presence of the arrested person (Code C, para. 2.1) and must be made as soon as reasonably practicable (s. 37(5)). The claimant ought to have then been informed of the grounds for detention before he is questioned (Code C, para. 3.4).

In addition, there was a need for a review of detention. There is no record on the custody record of a review of detention being carried out before 3:15am (although a note was made on the record of the need for one), which could render the detention unlawful (either a tort or false imprisonment): see Roberts v. Chief Constable of the Cheshire Constabularly [] . A review ought to have been carried out by a review officer six hours after the detention. Unless there is a cogent excuse for this, this is also a breach of PACE.

Finally, a reminder that the claimant was entitled to legal advice before being interviewed ought to have been given (Code C, paras 6.5 and 11.2).

Complaints Procedure

Mr. Barnham can complaint to the Independent Police Complaints Authority, a body independent to the police. This complaint ought to set out full particulars of the night of the arrest and the period in detention.

The body shall then review the information and determine whether or not any breaches of the necessary laws and codes have occurred. Subject to its determination, the body shall take any necessary disciplinary action it deems necessary against any officer it finds to be in violation of the law/procedures. For instance, a trespass to the person is actionable if it goes beyond what is acceptable by the ordinary standards of everyday life: see Mepstead v. DPP [] .

Further, PC Smith’s conduct in smashing down the claimant’s front door, thereby causing damage to it in the process is a further consideration that shall be entertained by the Complaint’s Authority.

The claimant is advised that a limitation period applies to any action to be commenced in the civil courts. The claimant is therefore advised to consult a solicitor as soon as possible with a view to initiating proceedings.

Additional Information required/ if any

Further information is necessary. We need to know exactly what was said to PC Smith on the radio in order to see if the description truly fitted to the alleged suspect or whether he was being harassed for his previous conviction. Moreover, we need the exact wording used during the stop and search of the client by the two constables and vice versa i.e. how the alleged suspect react when he saw the two constables.

A timetable is also necessary as to what happened previous his detention is authorized at the police station i.e. during the time he was kept from the two constables. Finally, details and receipts from the items that have been destroyed.

Summary

For the reasons outlined above, the claim, in my opinion, has an arguable case for wrongful arrest, false imprisonment and trespass to the person (assault or battery).

A deprivation of liberty constitutes false imprisonment if it unlawful. In other words, if it has been carried out without the correct authority or following the correct procedure: see Brown [] . In addition, any unlawful detention amounts to false imprisonment: see Spicer v. Holt [] .

In addition to being an offence at common law, this also arguably constitutes a breach of s. Human Rights Act 1998 in that it would arguably violate Article 5 (right to freedom and liberty) of the European Convention of Human Rights .

The claimant is therefore advised to initiate proceedings in the county courts for wrongful arrest, false imprisonment and trespass to the person and property, advisedly through a solicitor. In the Particulars of Claim he should list compensation for his glasses, jacket and front door, and damages for injuries sustained to be assessed by the court.

In my opinion, given that the police powers were not complied with fully, the arrest is arguably unlawful for the above reasons and accordingly the use of force is also unlawful and arguably constitutes common assault / battery.

Primary Sources

Code of Practice A/C/G

Criminal Justice & Public Order Act 1994

Criminal Law Act 1967

Human Rights Act 1998

Police & Criminal Evidence Act 1984

Police Reform Act 2002

Allen v. Metropolitan Police Commissioner [1980] Crim LR 441

Beckford [1991] 94 Cr App R 43

Brown [1976] 64 Cr App R 231

Christie v. Leachinsky [1947] AC 573 at p. 600

Dawes v. DPP [1994] Crim LR 604

DPP v. L [1999] Crim LR 752

DPP v. Wilson [1991] RTR 284

Holgate-Mohammed v. Duke [1984] AC 437

King v. Gardner [1979] 71 Cr App R 13

Lockley [1864] 4 F & F 155

Mepstead v. DPP [1996] 160 JP 475

Nicholas v. Parsonage [1987] RTR 199

O’Hara v. Chief Constable RUC [1997] 2 WLR 1

Osman v. DPP [1999] 163 JP 725 The Times, 28 September 1999

Roberts v. Chief Constable of the Cheshire Constabularly [1999] 1 WLR 662

Simpson v. Chief Constable of South Yorkshire Police [1991] 135 5J 393 The Times, 7 March 1991

Spicer v. Holt [1970] AC 987

Secondary Sources

Constitutional & Administrative Law, Antony Wilfer Bradley, Keith D. Ewing

Constitutional & Administrative Law, Hilaire Barnett, 7th Edition, 2009, Routlege, Cavendish

Core Statutes On Public Law And Human Rights, Rhona Smith, 2009, Palgrave-Mcmillan

P. Murphy (Editor-in-Chief), Blackstone’s Criminal Practice, 2000, Blackstone Press

The English Legal System, Garry Slapper, David Kelly, 7th Edition, Cavendish Publishing

Q & A Public Law, Richard Clements, Philip Jones, 2009-2010, Oxford University Press