West Law Report

KHAN v COMMISSIONER OF POLICE OF THE METROPOLIS

Last Updated: 7:17PM BST 11/06/2008
Court of Appeal (Civil Division) Pill, May and Moses LJJ June 6, 2008
Police powers and duties – Reasonable belief – Right to respect for private and family life – Search and seizure – Statutory interpretation Reasonable belief that premises owned or occupied by arrested person – Lawfulness of search – Literal interpretation of s. 18(1) Police and Criminal Evidence Act 1984 – S. 18(1) Police and Criminal Evidence Act 1984 – s. 32 Police and Criminal Evidence Act 1984 s. 8 Police and Criminal Evidence Act 1984 – Serious Organised Crime and Police Act 2005 – s. 3(1) Human Rights Act 1998 European Convention on Human Rights 1950 Art. 8 European Convention on Human Rights 1950

FACTS

The appellant police commissioner appealed against a decision of the judge that a police search of the home of the respondent (K) had not been conducted lawfully. Following his arrest, a suspect (M) had given false details to the police, including K’s home address as his own. Purporting to act under the Police and Criminal Evidence Act 1984 s. 18(1), police officers entered and searched K’s home in the middle of the night despite K’s objections and the presence of members of his family. Nothing relevant to the investigation of M was found. K issued proceedings against the commissioner. The judge found that the requirements of s. 18 of the Act had not been met, as there was no evidence that M had ever owned or occupied K’s premises, so that the police search had not been lawful. K was awarded damages for trespass. The commissioner contended that s. 18(1) of the Act should be interpreted to make a search lawful where a police officer had a reasonable belief that the premises had been owned or occupied by the arrested person. It was submitted that a literal interpretation of s. 18 was unworkable, as the police could never be sure of a property’s ownership or occupation when the decision to search it needed to be made.

ISSUE

Whether the police search of K’s home had not been conducted lawfully.

HELD (appeal dismissed)

There was no justification for reading s. 18 of the Act otherwise than in accordance with its plain words. Premises had to be occupied or controlled by the person under arrest if a search under s. 18 was to be lawful, and the absence of those requirements was not unimportant or irrelevant. Other powers of entry were available to police under s. 32 of the Act, or by obtaining a search warrant under s. 8 of the Act. Both of those sections referred to the necessity for “reasonable belief”, and its omission from s. 18(1) had not been accidental. Further, Parliament had revised the operation of powers under the Act and made certain amendments to it by the Serious Organised Crime and Police Act 2005, but it had not taken the opportunity of qualifying the requirements of occupation and control in s. 18(1). Further, under the Human Rights Act 1998 s. 3(1), the 1984 Act had to be read in a way that was compatible with an individual’s rights under the European Convention on Human Rights 1950, and giving the words in s. 18(1) of the Act their ordinary meaning accorded with the right to respect for private and family life under art. 8 of the Convention. The judge had, accordingly, been correct in his conclusion.

Rajeer Shetty (instructed by Bircham Dyson Bell) for the appellant. The respondent appeared in person.

ADORIAN v COMMISSIONER OF POLICE OF THE METROPOLIS

Posted in Assault, Criminal Justice Act, Police powers and duties, Westlaw Reports by mrkooenglish on June 4, 2008

Last Updated: 3:18PM BST 04/06/2008
Queen’s Bench Division Owen J May 19, 2008
Claims – Interpretation – Police officers – Procedural irregularity – Trespass to the person – Meaning of s. 329(2) Criminal Justice Act 2003 – Requirement to obtain court’s permission to bring civil proceedings – s. 329(2) Criminal Justice Act 2003

FACTS

The defendant Commissioner of Police (D) applied to strike out a claim for damages for assault on the ground that the claimant (C) had failed to obtain the court’s permission to issue proceedings in accordance with the Criminal Justice Act 2003 s. 329(2). C had been arrested and was subsequently found guilty of obstructing police officers in the execution of their duty. Following his arrest, C was found to have sustained a complex injury involving fractures to the head of his right femur. C contended that the injuries were sustained in the course of his arrest and issued a claim for damages for assault. D submitted that s. 329(2) gave rise to a mandatory requirement to obtain the court’s permission before the issue of proceedings and that a failure to do so rendered the proceedings a nullity in their entirety. C submitted that the court could entertain a subsequent application for permission and permission should be granted.

ISSUE

Whether s. 329(2) gave rise to a mandatory requirement to obtain the court’s permission before the issue of proceedings and that a failure to do so rendered the proceedings a nullity in their entirety.

HELD (judgment accordingly)

(1) A failure to comply with s. 329(2) did not render the proceedings a nullity, but amounted to a procedural irregularity that could be cured by a subsequent application at the discretion of the court, Rendall v Blair (1890) LR 45 Ch D 139 CA and Re Saunders (A Bankrupt) [1997] Ch 60 Ch D applied. There were a number of reasons for that conclusion. Firstly, recourse to the courts was not to be excluded except by clear words. Secondly, there was no legislative history from which it was clear that Parliament intended compliance to be mandatory, Seal v Chief Constable of South Wales [2007] UKHL 31, [2007] 1 WLR 1910 distinguished. Thirdly, to construe s. 329(2) as a mandatory requirement would have the effect of defeating other causes of action brought in the proceedings, which would be restrictive. Fourthly, the protection for a prospective defendant provided by the section was not lost by treating prior permission as a procedural requirement. A defendant would be able to apply to the court to have the proceedings struck out if proceedings were commenced without prior permission.

(2) C sustained extremely serious injuries in the course of his arrest. It would be plainly open to a court to conclude that the force used in the restraining of C in the course of his arrest was grossly disproportionate. C therefore satisfied the test in s. 329(3). Justice required that C’s claim that such injuries as were sustained by trespass to the person or negligence or both should be determined by the court.

Phillippa Kaufmann (instructed by Bhatt Murphy) for the claimant. P Stagg (instructed by in-house solicitor) for the defendant.

WOOD v COMMISSIONER OF POLICE OF THE METROPOLIS

Last Updated: 3:27PM BST 04/06/2008
Queen’s Bench Division (Admin) McCombe J May 22, 2008
Photographs – Retention – Right to respect for private and family life – Surveillance – Police photographing individuals in streets – Breaches of art. 8 European Convention on Human Rights 1950 – Art. 8 European Convention on Human Rights 1950

FACTS

The claimant (W) applied for judicial review of the decision of the defendant police commissioner’s officers to photograph him whilst he attended the Annual General Meeting of a third party company (R). At the relevant time W was a media co-ordinator employed by an unincorporated association (C) that campaigned against the arms industry. R, through a subsidiary company, organised trade fairs for various industries, including the arms industry. Over the years R’s offices in the United Kingdom had been subjected to demonstrations, some involving criminal damage. It became known to R that a number of individuals opposed to the arms industry intended to attend R’s AGM, and it informed the police. The commissioner took the view that there was a real possibility of a demonstration at the AGM and that unlawful activity might occur. He decided to authorise the deployment of police officers with a civilian photographer around the hotel where the AGM was taking place. Those officers, having observed W in the company of a known arms industry protestor, decided to photograph him. The police subsequently discovered W’s identity from the photographs and retained them. W submitted that the taking and the retention of photographs by the police officers amounted to an unjustified interference with his right to respect for privacy under the European Convention on Human Rights 1950 art. 8. The commissioner submitted that art. 8 was not engaged as W had been photographed, not in his private capacity, but as a media officer of C, which had been conducting a legitimate but public campaign against R, so that W could have had no reasonable expectation of privacy and, further, that W had not been photographed randomly or arbitrarily, but in the light of past offences that had been committed against R, and in the light of W’s association, on the instant occasion, with the known protestor. Additionally, the commissioner argued that the photography had been overt and that the photographs were retained, not for the compilation of a national database or for general publication, but for the purposes of identifying at future events persons who had been involved in unlawful activity.

ISSUE

Whether the taking and the retention of photographs by police officers of W amounted to an unjustified interference with W’s right to respect for privacy under the European Convention on Human Rights 1950 art. 8.

HELD (application refused)

There was no interference with W’s rights under art. 8(1) of the Convention by the taking and retention of the photographs. The English courts at the highest level had adopted a very robust approach to questions of interference with rights under art. 8(1) in relation to photographs in public places and their subsequent retention, and in relation to the retention of intimate samples for proper police purposes in assisting in the detection of crime. Adopting the “reasonable expectation” of privacy test in regard to disclosure of photographic material in Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 AC 457 and the views of the House of Lords concerning, firstly, the stop and search powers in R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12, [2006] 2 AC 307 and, secondly, the retention of DNA samples in R (S) v Chief Constable of South Yorkshire [2002] EWHC 478 (Admin), [2002] Po LR 273, it was difficult to see how the taking and retention of the photographs in the instant case could be an interference with W’s rights under art. 8. On the facts, W could have little expectation of privacy generally in relation to his attendance at R’s AGM. He was attending as a media co-ordinator of a high-profile national pressure group. One of C’s members was actively and publicly canvassing those attending the meeting. R was a company that had been the victim of criminal activity in the conduct of its lawful business in the past. It would not have been surprising if press interest had led to photography of those attending, irrespective of police interest. W was photographed in a public street, in circumstances in which police presence could not have been unexpected by W or anyone else. The images were to be retained, without general disclosure, for very limited purposes. Their retention was not part of the compilation of a general dossier of information concerning W of the type that had been held in the past to constitute an interference with art. 8 rights.

Martin Westgate (instructed by Liberty) for the claimant. Sam Grodzinski (instructed by in-house solicitor) for the defendant.

MCMILLAN v CROWN PROSECUTION SERVICE

Posted in Assault, Police powers and duties, Westlaw Reports by mrkooenglish on May 23, 2008

Last Updated: 11:26AM BST 22/05/2008
Divisional Court

Maurice Kay LJ, Penry-Davey J

May 12, 2008 (Filed: May 22, 2008)

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Assault – Drunk and disorderly – Police officers – Arresting police officer escorting drunken person from private garden – Actions acceptable in ordinary conduct of daily life – s. 5 Public Order Act 1986

FACTS

The appellant (M) appealed by way of case stated against a decision of a magistrates’ court to convict her of the offence of being drunk and disorderly in a public place. Police officers had found M on the street in a drunken state, warned her about her behaviour and advised her to go home. The officers later found M in the garden of her daughter’s house shouting and swearing at the front door. One of the officers (S) advised her to leave but M continued to shout and swear. S then took M by the arm and escorted her down a set of steps from the garden and onto a public footpath. M shouted at and argued with S and was arrested. The lawfulness of S’s actions in physically leading M from the garden to the footpath was considered at trial. The magistrates held that there had been no assault, and convicted M of the offence charged. The principal question posed for the consideration of the High Court was whether the magistrates were correct to find that there had been no assault. M submitted that from the moment S took her by the arm, he was in law assaulting her, and her disorderly behaviour was the behaviour of someone who was the victim of a continuing assault against which she was entitled to protest.

ISSUE

Whether the magistrates were correct to find that there had been no assault.

HELD (appeal dismissed)

The question was whether the magistrates were entitled to hold that S, by taking M by the arm, had been acting within the bounds of what was generally acceptable in the ordinary conduct of daily life, Collins v Wilcock [1984] 1 WLR 1172 DC applied. Common sense compelled that they were so entitled. The magistrates were plainly satisfied that S had made the pragmatic decision not to arrest M in the garden, perhaps for an offence under the Public Order Act 1986 s. 5, preferring instead a negotiated conclusion which would be in M’s interests. The magistrates found that S had taken M by the arm to escort her out of the garden so he could speak to her in the street, and they rejected any suggestion that she was removed to a public place so as to justify an arrest for an offence with a public place requirement. In acting as he did, S, who had had in mind the steepness of the steps and had wanted to steady her for her own safety, could properly be said to have acted in conformity with generally acceptable standards of conduct.

Quincy Whitaker (instructed by Ben Hoare Bell, Sunderland) for the appellant. Robert Spragg (instructed by Crown Prosecution Service) for the respondent.

Restraint without arrest was assault

Posted in Assault, Police powers and duties, Times Law Report by mrkooenglish on May 23, 2008

From The TimesMay 23, 2008

Restraint without arrest was assault
Queen’s Bench Divisional Court
Published May 23, 2008
Wood v Director of Public Prosecutions
Before Lord Justice Latham and Mr Justice Underhill
Judgment May 14, 2008

Where a police officer restrained a person, but did not at that time intend or purport to arrest him, he was committing an assault, even if an arrest would have been justified.

The Queen’s Bench Divisional Court so held when allowing an appeal by way of case stated from the dismissal by Luton Crown Court (Judge Bevan, QC and justices) of the appeal by Fraser Wood against his conviction by Stevenage Justices for offences of assaulting police officers in the execution of their duty, and of threatening behaviour contrary to section 4 of the Public Order Act 1986.

The police officers had attended an incident acting on reports that a man called “Fraser”, who had a police record for violent behaviour but was unknown to the officers themselves, had behaved in a disruptive manner. When the defendant appeared one of the officers had taken hold of him by the arm and asked whether he was Fraser.

The second officer had taken hold of him when he denied that was his name, although at the time he was being addressed as “Fraser” by some of his companions. The defendant’s ensuing struggle with the officers had given rise to the charges and convictions.

The crown court, dismissing the defendant’s appeal, had held that the first officer had reasonable grounds to suspect the man in front of them had committed an arrestable offence and to detain him, although it was not until a later point that the officer’s suspicion had crystallised into certainty that he was indeed Fraser Wood, the man he had come to arrest. The court was therefore satisfied that the actions of the first officer and those following him were lawful and the defendant was guilty of the offences charged.

In the case stated, two questions were asked: (i) Was the court right to conclude that the officers were acting in the execution of their duty? (ii) Must a police officer, when exercising a power of arrest, intend to exercise that power of arrest and believe that he did have the power to arrest?

Mr Timothy Bowden for Fraser Wood; Mr Patrick Fields, solicitor, for the Director of Public Prosecutions.

LORD JUSTICE LATHAM said that it was unfortunate that there were no findings by the crown court as to what the two officers intended or said at the time.

The distinction made by the officer in his evidence between detaining the defendant and arresting him was not a question of se-mantics. The officer did not intend or purport to arrest the defendant when he restrained him and at no stage before the defendant struggled to free himself did he assert that he was arresting the defendant.

As was the case in Kenlin v Gardiner ([1967] 2 QB 510), the officer had committed a technical assault. Accordingly the defendant’s appeal was allowed and his convictions quashed.

Mr Justice Underhill agreed.

Solicitors: Hegarty LLP, Peterborough; Crown Prosecution Service, Luton.

Evidence elicited in safety interviews is admissible

From The TimesMay 8, 2008

Evidence elicited in safety interviews is admissible
Court of Appeal, Criminal Division

Published May 8, 2008

Regina v Ibrahim and Others

Before Sir Igor Judge, President, Mr Justice Forbes and Mr Justice Mackay

Judgment April 23, 2008

Evidence obtained during safety interviews held with a defendant in the absence of his solicitor was admissible at his subsequent trial subject to the ordinary principles governing a fair trial and excluding unfair evidence.

The Court of Appeal, Criminal Division, so held when refusing applications by Muktar Said Ibrahim, Yassin Omar, Hussein Osman (aka Hamdi) and Ramzi Mohamed, for leave to appeal against their convictions on July 9, 2007, at Woolwich Crown Court (Mr Justice Fulford and a jury) of conspiracy to murder, for which they were sentenced on July 11, 2007, to life imprisonment with minimum terms of 40 years.

Mr George Carter-Stephenson QC and Mr Ali Naseem Bajwa for Ibrahim; Mr Michael Wolkind, QC and Mr Stephen Vullo for Omar; Mr James Lewis, QC and Mr James O’Keefe for Osman; Mr Mark Milliken Smith, QC and Miss Frida Hussain for Mohamed, all defence counsel assigned by the Registrar of Criminal Appeals; Mr Nigel Sweeney, QC, Mr Max Hill and Miss Alison Morgan for the Crown.

THE PRESIDENT, giving the reserved judgment of the court, said that on July 21, 2005, bombs were detonated in the London Underground transport system and on a bus in Hackney but the main charges failed to explode. The bombers made their escapes.

The immediate objective of the investigation by the police was directed to protecting the public from any further violent incidents by finding and detaining the bombers. The four defendants were arrested, together with 14 other individuals suspected of terrorism offences.

A police superintendent directed that, in accordance with paragraph 8 of Schedule 8 to the Terrorism Act 2000, interviews with the defendants to secure public safety should take place in the absence of their solicitors.

In safety interviews, a suspect would be interviewed to obtain information which might help the police to protect life and prevent serious damage to property.

At the trial of the defendants, and on their appeals, the question arose whether the results of such interviews could be used as evidence against them. It was clear that the admission of safety interviews or their fruits in evidence at a subsequent trial, was not precluded by the legislative structure.

At the safety interviews, the defendants had made demonstrably untrue assertions which failed to suggest the defences, later advanced at trial, that the bombs were hoaxes. The judge had ruled that it was clear beyond doubt that the defendants were not misled or deceived as to the underlying purpose of the interviews, the possible consequences of answering questions or the potential risks of not revealing elements of their defence.

He also said that it was sometimes necessary for a suspect to have the assistance of a lawyer before he could understand and describe a complicated defence, but that was not the instant case.

Access to lawyers had been denied for a relatively short period and in no case for more than eight hours. Their Lordships could find nothing to support the conclusion that the judge’s decision to admit the interviews in evidence at trial was in any way flawed.

Solicitors: Crown Prosecution Service.

MCNEIL v DPP

Posted in Breath tests (Road Traffic Act), Police powers and duties, Westlaw Reports by mrkooenglish on May 8, 2008

MCNEIL v DPP
Last updated: 7:15 PM BST 07/05/2008
Divisional Court

Latham LJ, Underhill J

April 28, 2008

Blood samples – Breath samples – Breath tests – Driving while over the limit – Police powers and duties – Effect of reflux or regurgitation on breath test – Validity of police guidance – Road Traffic Act 1988 – s. 7(3)(bb) Road Traffic Act 1988

FACTS

The appellant motorist (M) appealed by way of case stated against the decision of a magistrates’ court to convict him of driving over the alcohol limit. M had failed a roadside breath test and had been required to produce a specimen of breath at a police station in relation to an offence of driving over the alcohol limit. At the police station a pro forma document, namely MGDD/A (Station Procedure), was used with a view to administering an intoximeter breath test. M provided two breath specimens but indicated that he had burped in the course of providing the second specimen. That indication was in response to a question, namely question A17 prescribed by the form, as to whether he had brought up anything from his stomach since he had started to use the intoximeter. A note to the question stated that if a police officer received a positive answer to that question there was reasonable cause to believe that the instrument used had not produced a reliable indication and directed the police officer to require a specimen of blood or urine. The officer followed that direction and required M to provide a specimen of blood. M was convicted of driving over the limit on the basis of the analysis of a specimen of blood that he provided. M contended that as it was settled law that a specimen of breath that had been affected or potentially affected by reflux or regurgitation from the stomach was to be treated as a specimen of breath for the purposes of the Road Traffic Act 1988, an indication obtained from an intoximeter in such circumstances could not be regarded as unreliable for the purposes of s. 7(3)(bb) of the Act so as to entitle a police officer to require a specimen of blood.

ISSUE

Whether the police officer had not been entitled to require M to provide a specimen of blood.

HELD (appeal allowed)

Although no blame attached to the police officer for following the procedure prescribed by the pro forma document, the fact remained that the cause that he thought he had had, namely that the breath specimen tested by the intoximeter had not given a reliable indication of the amount of alcohol in R’s breath was not, in law, capable of rendering that indication unreliable, Zafar v DPP [2004] EWHC 2468 (Admin), [2005] 169 JP 208 and Woolfe v DPP [2006] EWHC 1497 (Admin), [2007] RTR 16 applied. It followed that the police officer had not been entitled to require M to provide a specimen of blood, and, accordingly, M’s conviction was quashed.

Nigel Ley (instructed by Byrne Frodsham, Widnes) for the appellant. Andrew Clarke (instructed by Crown Prosecution Service) for the respondent.