Case Law Summaries

8 February 2022

Read our curated list of case law summaries below.

R (Schofield) v (1) Secretary of State for the Home Department (2) Chief Constable of Greater Manchester Police (Interested Party) [2021] EWHC 902 (Admin)

The Claimant’s son was fatally shot during an operation planned and controlled by Greater Manchester Police. Criminal proceedings against the Chief Constable were discontinued on the basis that he could not properly discharge the burden on him under health and safety legislation without deploying sensitive material in court. The Claimant (S) was unable to challenge the decision to discontinue the prosecution because the CPS was unable to provide the sensitive material to her. S sought a declaration of incompatibility in relation to the statutory bar to the admissibility of intercept evidence in legal proceedings (contained in s.56 of and Sch. 3 to the Investigatory Powers Act 2016) on the basis of the procedural obligation under Articles 2 and/or 6 ECHR. The secretary of state neither confirmed nor denied that the material was intercept material but was content for the court to proceed on the basis that it was.

HELD: The statutory bar on the use of intercept evidence in criminal proceedings is not incompatible with the ECHR. The Strasbourg caselaw makes clear that rules of evidence are a matter within the State’s margin of appreciation. The statutory bar has been held to be compatible with Article 6 ECHR, in particular, because it prevents both parties from relying on the material. There is no good reason to go beyond the Strasbourg caselaw and every good reason to leave it to Parliament (especially when Parliament has chosen to keep it in place after numerous considered reviews).

R (Stronge) v (1) Commissioner of Police of the Metropolis (2) The Secretary of State for the Environment, Food and Rural Affairs (Interested Party) [2021] EWHC 766 (Admin)

The Claimant (S) owned a pit bull type dog. S was convicted of possessing a dog of a prohibited type, contrary to the Dangerous Dogs Act 1991 and the dog was made subject to a contingent destruction order. S was subsequently convicted of three further offences under the 1991 Act. The dog was made subject to an immediate destruction order. S failed to deliver up the dog and the Commissioner seized it. The Commissioner held the dog in kennels operated by private contractors, pending the outcome of a Crown Court appeal. To succeed on appeal, S needed to demonstrate that either he or another ‘person for the time being in charge’ of the dog was a fit and proper person to be the dog’s keeper. S’s solicitors asked the Commissioner to transfer the dog to kennels operated by the Dogs Trust, with a view to a staff member taking responsibility for the dog (thus being eligible to be the dog’s keeper). S challenged the Commissioner’s refusal to transfer the dog.

HELD: S’s challenge failed. A transfer of the dog for the express purpose of promoting a particular result in the Crown Court and attempting to avoid the rigour of the legislative scheme, rather than for the purpose(s) for which the dog had been lawfully seized (i.e. to give effect to the destruction order), is not a lawful exercise of the Commissioner’s discretion. Even if the Commissioner had a discretion to transfer the dog for the purpose put forward, she was entitled to take into account the degree of control which her arrangements with the specified kennels conferred, in contrast to the uncertain proposal put forward by the Dogs Trust on behalf of S.

Rees v Commissioner of Police of the Metropolis [2021] EWCA Civ 49

The Claimant (R) had been charged with murder (along with two co-defendants). The evidence of a key prosecution witness was excluded because a high-ranking officer had compromised the integrity of that evidence. The prosecution was discontinued. R and his co-defendants claimed damages for distress and loss of liberty. R was found to have been incarcerated (for a period of 682 days) in circumstances of malicious prosecution and misfeasance in public office. Damages (including aggravated and exemplary damages) were awarded in the total sum of £155,000. R appealed on the grounds that: (1) the award for loss of liberty was too low;; and (2) the judge erred in failing to award interest on the basic and aggravated damages. The Commissioner cross-appealed on the basis that the award of exemplary damages was not justified or too high.

HELD: (1) There was no error in the way the judge had approached the assessment of the award. There is a progressively reducing scale as the period of detention goes on. The judge had appropriately considered (and distinguished) the comparator cases involving unlawful immigration detention. (2), The Court has a discretion to award interest under s.35A of the Senior Courts Act 1981. In cases involving wrongful arrest and false imprisonment, it is pragmatic not to award interest on damages. The better course will usually be to fix an award to reflect both intervening inflation (having regard to Thompson) and the fact that the award is being calculated by assessing the situation up to and as at the date of judgment. There was no proper basis for interfering with the exercise of the judge’s discretion in this case. (3) The cross-appeal was dismissed. The statements in Thompson regarding the “absolute maximum” available for an award of exemplary damages are not to be read in a limited way; it is guidance directed at the paradigm of a single claimant and, in the exceptional circumstances of this case, the judge was entitled to reach the global figure awarded.

R (QSA) v National Police Chiefs’ Council [2021] 1 WLR 2962

The Claimants (Q, B and A) were convicted of loitering in a street or public place for the purposes of prostitution in the 1980s-1990s. The convictions were recorded on the police national computer (PNC). Pursuant to a policy of the NPCC, the convictions would remain on the PNC until Q, B and A were 100 years old. While the policy allowed chief officers to exercise a discretion, in exceptional circumstances, to delete PNC records relating to non-court disposals, court convictions were not eligible for record deletion.  Q, B, and A claimed that the policy (referred to as the “100-year rule”) was unlawful on the basis that it was not in accordance with the law and constituted a disproportionate interference with their rights under Article 8 ECHR.

HELD: The 100-year rule is “in accordance with the law” — it could not be clearer or have a more foreseeable effect. Given that it is a hard-edged rule that does not allow for the exercise of a discretion, the need for safeguards in the form of an independent review mechanism does not apply. The 100-year rule is also proportionate. Government agencies have a genuine and pressing need to access a comprehensive record of criminal convictions. This objective is sufficiently important to the criminal justice system — and to public services requiring security, vetting, and licensing — to justify interference with the Claimants’ Article 8 rights. The interference occasioned by bare retention of data is modest and readily justified. The public interest in the maintenance of a comprehensive record of convictions far outweighs the personal interest of Q, B and A in deleting their past convictions.

Chief Constable of Greater Manchester v Zuniga and ors [2021] EWHC 1572 (Fam)

The Respondents (Z) provided forensic analysis services to police forces for the purposes of identifying drug use.  The results were used in a wide range of court cases.  The Applicant (GMP) led an investigation into alleged data manipulation by Z between 2011 and 2017.  The investigation uncovered 27,000 reports which appeared to have been affected. GMP applied for permission to obtain and use a large amount of potentially affected biometric data without limitation, since otherwise the data could only be held for the purpose of criminal law enforcement pursuant to s22 PACE despite the material having potential significance to the victims of miscarriages of justice.

HELD: GMP had permission to retain and use the material subject to two requirements: (i) that the subjects of the material’s identities would only be revealed in criminal trials with consent of the individual, and (ii) that the order would be reviewed every 12 months by the President of the Family Division.  Retention, use and disclosure of biometric data constitutes an interference with an individual’s Article 8 ECHR rights and therefore had to be justified according to well-established principles. The interference was in accordance with the law since the order was governed by PACE and the Family Procedure Rules.  It was necessary for practical purposes because otherwise GMP would have had to apply for permission for disclosure of data on a case-by-case basis, which would be a disproportionate burden on court resources.  Finally, the interference was proportionate as the orders would be reviewed every 12 months, allowing for reasonable retention and use of the data.

R (Rose) v Chief Constable of Greater Manchester [2021] EWHC 875 (Admin)

The Claimant (R) made a complaint against the police in respect of a decision not to prosecute individuals whom R had accused of theft, some of whom were family members and friends of serving police officers. The Chief Constable addressed the complaint through the local resolution process whereas R contended that the complaint met the criteria for mandatory referral to the IOPC because it related to “serious corruption”.

HELD: The decision to deal with the complaint through the local resolution process was wrong in law and was quashed.  When considering whether the conduct complained of warranted a mandatory referral to the IOPC, the Chief Constable should have considered the nature of the conduct alleged.  Merely stating that ‘serious corruption’ had occurred would be insufficient but once an allegation of particular conduct was made, the assessment was whether that conduct, if substantiated, would fall within the scope of mandatory referral to the IOPC. Since R had made a complaint of serious corruption and set out specific conduct that met the definition of serious corruption in the statutory guidance, mandatory referral to the IOPC was required.

Eniola v Commissioner of Police of the Metropolis [2021] EWHC 1335 (QB)

The Applicant (E) was stopped three times by the police, once in November 2020 and twice in January 2021.  On the first occasion, a member of the public thought they had seen a potential weapon placed into E’s car.  Firearms officers responded and it was quickly ascertained that the reported sighting of a weapon was a mistake; it was a microphone stand.  During the second stop, officers had contacted firearms officers, who indicated there was no intelligence to suggest E had a firearm but there was a record of the previous stop.  E also alleged that he had been informed during the third stop that it was due to a note on the police system connecting his car to firearms.  E subsequently avoided using the car for fear of being stopped.   E sought an interim injunction to prevent metropolitan police officers stopping him while driving.

HELD: The application was refused, applying the well-known test for interim injunctions.  Although the first stop had undoubtedly been a terrifying event for E and there had potentially been a risk to his life, it was not clear that there was a serious question to be tried in respect of the latter two stops, since it did not appear that E had a cause of action in relation to them.  In addition, the balance of convenience did not lie in favour of making the order.  E had been given assurances by the police that there were no explicit instructions for firearms officers to stop the car.  Further, there was no purpose in making an order that would merely oblige the police to do what the law already required of them (i.e. only stop E where it was justified by law).  Finally, damages were, in any event, likely to be an adequate remedy.

Chief Constable of Merseyside Police v Knox [2021] 1 WLUK 247

The Claimant (K) was a serving police officer who made a number of subject access requests (SARs) to his employing Force in order to assist in a discrimination claim against them. The Force provided some emails in December 2017 and February 2018 and further emails in October 2018 following an upgrade of its software relating to email retrieval. An employment tribunal (ET) found that K had been subject to a detriment because the Force had known in November 2017 that it had the capability to find the emails provided in October 2018; that this potentially amounted to victimisation on the basis that the Force was seeking to obstruct K’s discrimination claim; and that since the Force had not called a key witness to rebut the potential victimisation, it had not discharged its burden of proof. The Force appealed the ET’s decision.

HELD:  The ET was not entitled to reach the conclusions it did on the facts before it.  First, there was insufficient evidence of an intention to obstruct K’s claim. Further, the ET was not entitled to draw an adverse inference from the failure to call a key witness.  Secondly and relatedly, because there was insufficient evidence to support the view that the Force had tried to obstruct K, the ET was wrong to consider that the burden of proof had shifted to the Force to show it had not victimised K. The appeal was accordingly allowed.

AM v Chief Constable of West Midlands Police [2021] EWHC 796 (Admin)

The Appellant (AM) appealed by way of case stated against a finding that he had breached an anti-social behaviour injunction (ASBI). He had been filmed by a member of the public inside a banned area and was subsequently arrested. The police had consulted the Youth Offending Team (YOT) prior to applying for the injunction and again following AM’s arrest. It had also consulted the YOT about applying for a detention/supervision order. On appeal AM argued, firstly, that the police had failed to comply with their obligations to consult the YOT (imposed by paragraph 1(3)(a) of Schedule 2 to the 2014 Act) prior to arrest and prior to sending any papers relating to the breach to the court; and secondly, that the injunction was so unclear that the alleged breach was unenforceable.

HELD: (1) The police must consult the YOT before making any application: (i) for an ASBI against a minor (unless the application is made without notice, whereupon the obligation is delayed until the first on-notice hearing), (ii) for variation or discharge of an ASBI involving a minor, and (iii) for a supervision/detention order against a minor. There is no express or implied requirement to consult the YOT prior to arrest. The operationally sensitive nature of an arrest weighs against any such implication. There is no requirement to consult the YOT before the initial hearing following arrest, nor before sending breach papers to the court, nor before listing breach proceedings. In this case, sending papers to the court simply provided information about why AM had been arrested and detained overnight. (2) Consulting the YOT about supervision/ detention orders should involve seeking its views on the appropriate sanction (if any). However, there is no need to specifically ask the YOT whether breach proceedings should continue. On the facts the police had properly consulted the YOT. (3) Although the map attached to the ASBI should have been clearer it was permissible for the lower court to conclude that AM was aware of the relevant terms. The appeal was accordingly dismissed.

R (YZ) v Chief Constable of South Wales [2021] EWHC 1060 (Admin)

The Claimant (YZ) applied for his personal data to be deleted from the police national computer (PNC). He had been acquitted of raping his former wife, but details of the acquittal had been retained on the PNC. Other matters, such as his political and religious views, were also recorded. YZ submitted that retaining that information was a breach of the Data Protection Act 1998 (DPA) and incompatible with Article 8 ECHR.

HELD: The police guidance “Deletion of Records From National Police Systems” (the Guidance) was relevant but had no statutory force. Although the Guidance encourages individuals to provide reasons to justify the deletion of PNC records, it is ultimately for the data controller to demonstrate compliance with the DPA. Processing for law enforcement purposes must be lawful and fair. It is not for the applicant to show his records should be deleted. YZ’s acquittal, however, did not necessarily mean his personal data should be deleted. The finding merely demonstrated that the jury could not be sure YZ had committed rape. The presumption of innocence had no continuing relevance, except to prohibit a public authority from suggesting that the acquitted defendant should have been convicted (R (Hallam v Secretary of State for Justice [2019] UKSC). The police had to consider whether retention was necessary, taking into account the allegations and any other information. On the facts, processing the retained information was necessary for law enforcement in order to protect the former couple’s child and potentially YZ’s ex-wife as well. The decision to retain information about YZ’s religious views and mental health was fair and rational because it included concerns of extremism. It was also acceptable to retain the information for 100 years since it could not be said that the risk to the child and wife would diminish to the point of insignificance in the Claimant’s lifetime. The Article 8 claim failed for similar reasons. Retention was in accordance with the law, in the interest of preventing crime and for the protection of the individuals previously referred to.

Spicer v Commissioner of Police of the Metropolis [2021] EWHC 1099 (Admin)

The Commissioner had issued a press release entitled “Two guilty of killing a woman while racing their cars”. The Claimant (S) was referred to therein. At an earlier trial on meaning, Warby J had concluded the article meant inter alia “There are reasonable grounds to suspect that [S] was involved in racing his high-performance car against another similar vehicle at more than 60 mph in a 30 mph zone in Kingston Town Centre. The other vehicle struck a young woman”. At trial, the Commissioner raised defences of truth and privilege.

HELD: The Commissioner had to show that the article was substantially true. The standard of proof was the civil standard, regardless of whether the defamatory words alleged the commission of a criminal offence. The Commissioner’s submission that the sting of the article could be narrower than the imputation defined by Warby J was rejected. The court’s task was to determine whether the defamatory imputation arising from the article’s meaning (i.e. the sting) was substantially true. On the facts, the defence of truth succeeded. S knew the other driver involved, was racing that driver, and the race had ended in Ms Shamim being killed. The defence of privilege also succeeded. The Commissioner had to show that the relevant parts of the article were a fair and accurate report of court proceedings. Parts of the article fell into this category and were, consequently, absolutely privileged. Although the relevant paragraphs did contain some extraneous material, it was not such that privilege was lost because of inaccuracy or unfairness. Finally (and in the alternative) S had not shown that the article had caused him serious harm. There was no evidence that it was this article which had caused him harm, as opposed to the numerous other reports (some of which would have been more widely read). Although individuals had retweeted a tweet from the Commissioner which contained a link to the article, this did not mean they believed S was guilty of causing Ms Shamim’s death.  The claim for defamation was accordingly dismissed.

R (AIG) v (1) HM Courts and Tribunal Service, (2) Commissioner of Police of the Metropolis [2021] EWHC 584 (Admin)

The Commissioner applied to withhold disclosure of a document on the grounds of public interest immunity (PII) in the context of a judicial review challenge to the grant of a warrant to search the Claimant’s home.

HELD: Ordinarily a successful application for PII means the material ceases to be disclosable and the proceedings are determined without reference to it. However, following the Supreme Court’s decision in R (Haralambous) v St Albans Crown Court [2018] 2 AC 236, in search warrant cases the court can have regard to all the information put before the judge to obtain the warrant (including PII material which cannot be disclosed to the Claimant). The damage to the public interest from non-disclosure to the claimant will not, however, necessarily be greater where Haramlambous applies. The court must be satisfied that the asserted risk to national security in the event of disclosure is both real and substantial. The experience and expertise of witnesses who depose to the national security case should be scrutinised. The issue of harm must be determined based on the circumstances of the case, including the specifics of the Claimant’s personal circumstances. On the facts, the consequences of upholding the application would be severe. The outcome of the judicial review claim would probably affect the Claimant’s ability to work in his field for at least 5 years. However, the potential damage to the public interest resulting from disclosure clearly outweighed the damage arising from the withholding of the material from the Claimant. The fact that a number of seized items had been returned, and that the Claimant was able to leave the UK, did not mean the consequences of disclosure would necessarily be less harmful. Nor was it possible to gist the document without causing harm to the public interest. The application for PII was accordingly granted.

Commissioner of Police of the Metropolis v Meekey [2021] EWHC 34 (Admin)

The Respondent (M)’s home was searched by the police in 2003 and a quantity of firearms seized. M was subsequently imprisoned for possessing prohibited weapons and ammunition, contrary to the Firearms Act 1968. On release he made an application under s.1 of the Police (Property) Act 1897 for the return of the firearms. Section 21 of the 1968 Act made it unlawful for M to have possession of any of the seized firearms as he had been sentenced to a term of imprisonment of more than three years. The Commissioner made a parallel application for their destruction, pursuant to s.52(4) of the 1968 Act. The lower court allowed M’s application and refused the Commissioner’s. The Commissioner appealed by way of case stated.

HELD: Contrary to the finding of the lower court, section 3 of the Limitation Act 1980 applied to the 1897 Act (in addition to tort claims generally) in that where goods have been converted, and the period of limitation has expired, the owner’s title is extinguished. The Commissioner had unequivocally refused M’s demand for the return of property, thereby amounting to conversion which triggered the commencement of the limitation period. Later conversations about potentially returning the items did not undermine the fact of conversion. As a consequence of the limitation period expiring, M did not actually own the firearms when he made his application under the 1897 Act. In the alternative, M was not permitted to possess the seized firearms due to s.21 of the 1968 Act. It was irrelevant that the order sought by M would not have given him physical possession of the firearms, but instead have transferred ownership to a third party who could sell the guns for him. Section 21 did not solely prevent individuals such as M from having physical possession of firearms. As to the Commissioner’s application for destruction, there was no evidence that the firearms had been seized under powers in the 1968 Act, which meant the power under s.52 was not available. It was, however, open to the Commissioner to make a fresh application with the appropriate evidence. The appeal was therefore partially upheld.

Commissioner of the City of London Police v Geldart [2021] EWCA Civ 611

An officer (G) asserted she was entitled to receive the London Allowance for her entire maternity leave, rather than the 18 weeks provided, and that non-payment constituted direct sex discrimination. The Employment Tribunal upheld her claim, reasoning that the allowance fell within Part 6 of the Police Regulations 2003 (‘Allowances and Expenses’) and that it had not been paid because the officer had been on maternity leave – thus, her treatment was inevitably caused by her sex. This was subsequently upheld by the EAT. The Commissioner appealed. G cross-appealed on the basis that she was entitled to claim indirect sex discrimination in the alternative.

HELD: A natural reading of the Regulations indicated the London Allowance fell under Part 6 not Part 4 (‘Pay’) and was payable for the whole of the maternity leave period (in the absence of express provision to the contrary). However, G had been denied the allowance after 18 weeks because C had mistakenly considered it “pay”: it was her absence from work rather than being on maternity leave per se that had led to withholding it. Thus, the treatment complained of was not due to sex and was not direct discrimination. Section 71 of the Equality Act 2010 did not preclude a claim of indirect sex discrimination, as it did not apply to a claim relating to “any other detriment” (s. 39(2)[d]) such as this one. Thus, this aspect of the claim was remitted to the tribunal for consideration.

R (Chief Constable of Avon and Somerset) v Police Misconduct Tribunal; PC Pauline Archer, Ms Jade Sasani (interested parties); the Director General of the IOPC (intervener) [2021] EWHC 1125 (Admin)

A police officer (A) made a joke about her partner which featured a racial slur. A colleague (S) overheard her. A police misconduct panel accepted A’s account that the term was not part of her general vocabulary, that she had used it unintentionally, and that she had subsequently taken full responsibility for her actions. The panel declined to dismiss her. The Chief Constable submitted that S should have been required to give evidence at the hearing; that the panel made irrational findings as to A’s mindset and intentions; that it had made an irrational decision as to sanction; that it had failed to give adequate reasons for preferring A’s evidence to that of S; and that it had failed to properly structure its decision in accordance with the three-stage approach set out in Fuglers LLP v Solicitors Regulatory Authority [2014] EWHC 179 (Admin).

HELD: While the chair of a tribunal was under a continuing obligation to review whether witnesses should be called, with the test being whether attendance was reasonably believed to be necessary in the interests of justice, it had not been necessary to call S. S’s evidence had actually been accepted – the tribunal merely formed its own assessment of A’s mindset and intent, and gave sufficient reasons for its conclusions. Those conclusions were rational. It was therefore rational to conclude that a written warning was the appropriate sanction. As the officer had admitted gross misconduct, no unfairness had arisen from the tribunal hearing submissions on the seriousness of A’s conduct before it officially made a finding of misconduct, rather than at the stage of considering appropriate sanction.

R (Chief Constable of Nottinghamshire) v Police Appeals Tribunal; PS Jonathan Flint (interested party) [2021] EWHC 1248 (Admin)

A police officer (F) had been called to a property by an enforcement agent (there to secure payment of a debt) who suspected that a parcel had been stolen from his car and taken inside. The householder made a number of allegations against F, including some relating to his integrity. All of the allegations bar one were upheld by a police misconduct panel and F was dismissed. F appealed to the PAT in relation to the sanction but not the finding of gross misconduct. The PAT substituted a final written warning on the basis that it was unreasonable to have found a lack of integrity on F’s part. The Chief Constable argued that the PAT had irrationally quashed F’s dismissal, had quashed sound findings of fact and had acted with procedural unfairness.

HELD: The PAT, in substituting its own sanction for that of the panel, had acted rationally but had failed to pay heed to the three-stage test set out in Fuglers LLP v Solicitors Regulation Authority [2014] EWHC 179 (Admin) and to follow the College of Policing Guidance. Specifically, it had neglected to assess the seriousness of F’s conduct, the harm caused and any aggravating or mitigating factors. On that basis, the PAT’s decision as to sanction was quashed and the case was remitted for a fresh decision. The PAT’s determination on integrity, however, was upheld, and was thus determined to be essentially a question of law rather than of fact.

R (M) v Chief Constable of Sussex; Brighton and Hove Business Crime Reduction Partnership (interested party) [2021] EWCA Civ 42

Information sharing agreements (ISAs) existed between the police and a local business crime reduction partnership (BCRP) to facilitate a scheme which banned certain persons from entering the premises of BCRP members. The Chief Constable disclosed information relating to a child (M) to the BCRP, including her bail conditions and that she had been assessed as at risk of sexual exploitation. M submitted on appeal that (1) the judge had been wrong to conclude that the ISA provided sufficient safeguards to meet the requirements of processing children’s sensitive information and (2) sharing her bail conditions with the BCRP amounted to sharing that information with “members of the public”, in breach of the Children and Young Persons Act 1933, s. 49, and the Youth Justice and Criminal Evidence Act 1999, s. 45(1). The Chief Constable cross-appealed, arguing that the judge was wrong to hold that the disclosure to the BCRP concerning M’s risk of sexual exploitation consisted of sensitive personal information about her sex life.

HELD: Part 3 of the Data Protection Act 2018 made no requirement of particularly rigorous safeguards for children. So long as both the Chief Constable and the BCRP as data-controllers integrated “appropriate” safeguards into their policies, the statute was not prescriptive about measures to be taken. A holistic view should be taken of the overall package of governance controls. The measures in place were appropriate. Furthermore, the information in question had not been published to the public but disclosed to the BCRP via private communication. The expression “sex life” should be given its natural meaning: that it related to someone’s own sexual conduct and preferences – not to the fact that she was or had been at risk of exploitation.

Archer v Commissioner of Police of the Metropolis [2021] EWCA Civ 1662

The Claimant (A) was a juvenile, who had been subjected to a violent attack and was subsequently treated in hospital.  A few days after receiving treatment, A was arrested in relation to the incident on suspicion of violent disorder and possession of an offensive weapon.  A was charged and bail was refused on the basis that it was necessary to detain him for his own protection, as well as to prevent physical injury to another person, and to prevent the commission of another offence.  Officers suspected that A was embroiled in local gang violence.  A argued, amongst other things, that the decision to detain him for his own protection was not justified, on the basis that detention for his own safety was not a lawful ground permitted under Article 5 ECHR.  He sought a declaration of incompatibility.  The High Court dismissed the claim on the basis that detaining someone in order to protect them was in principle compatible with Article 5, as long as (i) the detention was limited in time; (ii) it only occurred in exceptional circumstances; and (iii) there were no reasonably available alternative means to afford protection.  A appealed.

HELD: Although detaining someone for their own protection cannot justify the detention of an individual on its own, it may justify detention where there is also a reasonable suspicion of the individual having committed an offence.  Releasing someone in such circumstances would defeat the purpose of bringing them before the court.  Detaining an individual suspected of committing an offence for their own protection will be subject to the three conditions set out by the High Court.  As regards the detention of juveniles, in addition to the aforementioned conditions, it should be the exception and not the rule and the facts and circumstances relating to detention of juveniles must be rigorously considered.  Further, juveniles should be kept separate from adults.  Having regard to those principles, the High Court had been right to hold that A’s detention was justified.

Goodenough v Chief Constable of Thames Valley [2021] EWCA Civ 1422

The Claimants were the mother and sister of a deceased individual (G), on whose behalf claims were brought for battery, negligence and breach of Article 2 ECHR.  After a police pursuit, G had resisted removal from the car he was driving.  To carry out G’s removal, officers had punched him and pulled him from the car, causing his face to hit the road.  G was subsequently arrested.  G was an abuser of butane gas, which meant that he was vulnerable to heart failure if exposed to stress.  It was that which caused his death.  It was agreed that police officers had applied force to G and that this force was in law a cause of his death.  The trial judge held that the officers who had used force reasonably considered that it was necessary to do so in order to protect themselves and others.  The Claimants appealed on the basis that the judge had been wrong to accept that a reasonable and honest but mistaken belief in imminent danger was sufficient to establish self-defence, and against the judge’s approach to the proportionality of the force used.  Finally, the Claimants argued that the judge’s findings of fact were arrived at in an unfair way.

HELD: The trial judge had found that the three officers genuinely and reasonably believed G presented a risk, albeit that they were mistaken in their belief.  The trial judge was best placed to form a view regarding the officers’ beliefs of the risks posed by G and the Court of Appeal accepted those findings.   In the circumstances, as found by the trial judge, the level of force actually used was also proportionate to the risks the officers believed they faced.  Frequently, situations occur where irrational driving causes danger to police officers and others.  Further, there was nothing to suggest that the trial judge’s judgment was unfair, having regard to the findings of fact and the evidence adduced at trial.

Wilson v (1) Commissioner of Police of the Metropolis (2) National Police Chiefs’ Council [2021] 9 WLUK 354

An undercover police officer (K) was inserted into an environmental group and subsequently began a relationship with the Claimant (W). W brought proceedings against the Metropolitan Police Service (MPS) and National Police Chiefs’ Council in the Investigatory Powers Tribunal. The MPS conceded that Articles 3, 8 and 10 had been infringed, but disputed the extent of those infringements. It denied any breach of Articles 11 and 14.

HELD: The breaches of Articles 3 and 8 were broader than had been conceded by MPS: K’s cover officer knew of the relationship, while other senior officers either knew or turned a blind eye. Effectively, an approach of “don’t ask, don’t tell” had been adopted. There had been no attempt to mitigate the risks of inappropriate relationships occurring through adequate and suitable training. In considering Article 8, the Tribunal noted that K’s authorisations failed to distinguish between public order issues and domestic extremism, concluding that there was no pressing social need in the instant case. W’s rights under Articles 10 and 11 had been breached, since she had been targeted on the basis of her political opinions alone. The failures of the police had a disproportionate impact on women in terms of the number affected and the potential implications of pregnancy, resulting in a breach of Article 14.

Tindall v Chief Constable of Thames Valley Police [2021] EWCA Civ 25

A driver (K) suffered an accident due to black ice on the road. While he waited for emergency services, he signalled to other drivers to slow down. The police erected a ‘Police Slow’ sign on arrival. K then went to hospital. Having dealt with the accident and cleared the debris, the police departed, taking their sign with them. 20 minutes later, a man was killed in a collision caused by the black ice. His widow brought a claim,  alleging that the police had negligently caused K to leave the scene, had made matters worse by removing the sign, and had assumed responsibility towards her husband. A Master declined to strike out the claim. The defendant appealed.

HELD: The police had done nothing negligent to cause K to leave the scene. Mere knowledge that a situation was dangerous was not sufficient to create a duty of care, nor was an officer’s arrival or presence at a location, even if the public expected intervention. On these facts, although the police could have done more, they had not made the situation worse: their ineffectual response had simply failed to confer a benefit. The circumstances in which the police will be found to have assumed responsibility towards an individual will be limited, and the instant situation was different to those involving control over third parties where the defendant had created the danger. Nothing distinguished the relationship between T and the police to that between the police and other road users.

Owens v Chief Constable of Merseyside Police [2021] EWHC 3119 (QB)

The Appellant (O) appealed a decision to strike out references to an “intimate search” from his pleaded case. O claimed officers had ordered him to: remove his boxer shorts; separate his penis and testicles; pull the foreskin of his penis back; turn around, lean over and separate his buttocks. Applying R. v Hughes (Patrick Darren) [1994] 1 W.L.R. 876, the trial judge concluded those acts could not constitute an intimate search. The issues were: (i) what actions constitute an intimate search, and (ii) who must carry them out (the suspect or an officer)?

HELD: Intimate searches are defined in section 65 PACE as “a search which consists of the physical examination of a person’s body orifices other than the mouth”. There are only two lawful types of intimate search: (1) looking for ‘an injurious item’, i.e. something which could be used to harm oneself/ others and which might be used in that way whilst detained, and (2) a ‘drug offence search’ for a Class A drug. The language of s.65 was directed at items concealed within (i.e. inside) a relevant body orifice. Looking for items concealed outside of (including the surface of) a relevant body orifice does not constitute an intimate search. Therefore, police can extract an item resting on the outside of an anus or vagina without it amounting to an intimate search. The court was bound by Hughes. Further, a physical examination is required to engage s65. A mere visual examination does not suffice. Therefore, using force to bend a person over or spread their legs would not qualify as an intimate search. Finally, officers cannot avoid the statutory safeguards by ordering a person to carry out an intimate search upon themselves.

Eckland v (1) Chief Constable of the Avon and Somerset Constabulary (2) National Association of Legally Qualified Chairs (First Intervenor) (3) Independent Office for Police Conduct (Second Intervenor) (4) Association of Police and Crime Commissioners (Third Intervenor) [2021] EWCA Civ 1961

The Respondent (E) was a former Detective Sergeant. Following an initial finding by the Independent Office for Police Conduct (IOPC) that there was a case of gross misconduct to answer, E had been dismissed by an independent panel (the Panel). E alleged that his misconduct was the result of a mental health condition and commenced proceedings against the Chief Constable for unlawful discrimination under the Equality Act 2010 (2010 Act). The Chief Constable asserted that she had no legal responsibility for the acts of the IOPC or the Panel. The Employment Tribunal (ET) dismissed this objection in reliance on P v Commissioner of Police for the Metropolis [2017] UKSC 65. In P, the Supreme Court held that in the context of a claim of disability discrimination it was necessary to interpret s 42(1) of the 2010 Act (identity of employer) such that the actions of a panel determining a charge of misconduct by a police officer falls within the acts of the chief officer — unless s 42(1) were so interpreted, a claimant would have no remedy under the EU Equality Framework Directive which satisfied the effectiveness and equivalence principles. On the Chief Constable’s appeal to the Employment Appeal Tribunal (EAT), E accepted that he could not proceed in relation to the acts or omissions of the IOPC. The EAT dismissed the Chief Constable’s appeal in relation to acts or omissions of the Panel. The Chief Constable appealed on the grounds that (1) P could be distinguished and/or (2) P was not binding because the Supreme Court had erroneously proceeded on the assumption that other remedies were unavailable.

HELD: The Court was bound by P to hold that the Chief Constable was liable for the acts and omissions of the Panel. In relation to (1), the Supreme Court’s construction of s 42(1) of the 2010 Act, which arose in the context of the 2008 Regulations, was equally applicable to the 2012 Regulations (as amended by the 2015 and 2017 Amendment Regulations). In relation to (2), even if a claim could be brought in the County Court under s 29(6) of the 2010 Act, such a remedy was not equivalent to bringing a claim in the ET. The material differences between the two jurisdictions are: the relative expertise to determine discrimination disputes in the employment field, the costs regimes, the applicability of fees to initiate proceedings, and the remedial powers in a discrimination case.

Young v (1) Chief Constable of the Warwickshire Police (2) Director of Public Prosecutions [2021] EWHC 3453 (QB)

The Appellant (Y) was one of nine co-defendants charged with murder. During the criminal trial, the prosecution sought to rely on certain intelligence material as hearsay evidence. Y applied for full disclosure, including as to the identity of the informant. The Court dismissed the prosecution’s public interest immunity application and ruled that the co-defendants were entitled to full disclosure. The prosecution offered no further evidence. By that time, Y had been remanded in custody for over fifteen months. Y initiated proceedings for misfeasance in public office — principally against the Crown Prosecution Service (CPS), and specifically against the Senior Prosecutor (R) — on the basis that the material should have been disclosed earlier and that the delay was an act of malice. The claim in misfeasance was struck out on the basis of deficiencies in pleadings and substance. In relation to pleadings, the facts and circumstances set out were equally explicable by mistake or want of care. In addition, Y had not pleaded that any relevant individual foresaw that withholding the material would cause Y damage. In relation to substance, there was no real prospect of the Court drawing an inference of malice (in light of the explanation given as to why the material had not been disclosed earlier) and the allegation of actual foresight was entirely speculative. Y appealed on the basis that (1) the facts and circumstances of the disclosure failure demonstrated that misfeasance was a more realistic explanation than inadvertent mistake or want of care, or that (2) given the thin line between reckless indifference and incompetence, this is precisely the type of issue that should only be resolved after the evidence has been fully tested at trial.

HELD: In order for the misfeasance claim to proceed, it would be necessary for the material to have been of such a nature that no reasonable prosecutor in the position of R could have decided anything other than that the material needed to be disclosed to the defence immediately. At the relevant time, the material would not have appeared to be in that category. Y’s failure to plead his case in relation to foresight of damage (ie. what R should have foreseen or known at the time, and how that translated into damage, and thus damages, for Y) was also a serious omission. The appeal was accordingly dismissed.

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