Commissioner of Police of the Metropolis v MR (2019)
The recently appointed Mrs Justice Thornton dismissed an Appeal brought by the Appellant Police Commissioner against a County Court decision upholding the Respondent's claim for false imprisonment and assault following his arrest.
Each case is fact specific when considering the necessity element of an arrest. If an officer has not given any thought to alternatives to arrest then they are exposed to the risk of being found by a Court to have had no objectively reasonable grounds for their belief that arrest was necessary.
Background
The Respondent, MR, and A (the Complainant) were in a casual relationship for approximately 15 months prior to January 2010. On 6 January 2010, A made an allegation of harassment to the Metropolitan Police ("MPS") against the Respondent. A provided the MPS with the Respondent's mobile number and an appointment was arranged for him to attend the police station.
On 12 January 2010 the Respondent voluntarily attended where he was immediately arrested by DS Murphy on suspicion of harassment pursuant to s2 of the Protection from Harassment Act 1997. He was photographed and his fingerprints and a DNA sample were taken. He was then interviewed and detained for almost seven hours before being released on conditional bail.
Three weeks after his arrest, following a review of text messages between the Respondent and the Complainant, the Respondent was informed that no further police action would be taken. The Respondent brought a claim for damages for false imprisonment and assault. He stated that he was shocked by the turn of events and had been willing to co-operate with the police.
First Instance Decision
Section 24 Police and Criminal Evidence Act 1984 (PACE) provides the police with statutory authority to arrest a suspect who they reasonably suspect of committing an offence, provided the arrest is necessary. The elements of the offence were set out on the crime report.
The Court considered the arresting officer's reason for the necessity of the arrest which was recorded as, "so that you can be interviewed on tape," i.e. "to allow the prompt and effective investigation of the offence or of the conduct of the person in question," under s24(5)(e) Police and Criminal Evidence Act 1984 "PACE."
It was found that the MPS had failed to discharge its burden on the second limb of Hayes v Chief Constable [2012] 1 WLR 517 ("Hayes") i.e. that DS Murphy's decision was one which, objectively reviewed afterwards, according to the information known to him at the time was not made on reasonable grounds.
S29 of PACE reminds officers of their duty, of inviting voluntary attendance, to tell a suspect that he may leave at any time he chooses. The arresting officer could have proceeded with a voluntary interview and later arrested the Claimant, depending on how matters unfolded.
The reason given by DS Murphy for not inviting the Claimant to a voluntary interview applies in every case, namely that the Claimant would be free to leave if he found any topic too difficult. The Court held that this was not a case where, had a decision to conduct a voluntary interview been made, the officer would necessarily have intended to arrest the Claimant. The Court accepted that had this occurred and caused a delay, on the facts of the case a delay would not have impeded any investigation. The Court rejected DS Murphy’s view that there was some urgency to progress the investigation. Any interview, whether voluntary or otherwise, would have been taped.
In short, the Court considered that it was unreasonable to arrest the Respondent at the outset and matters could have instead proceeded by way of a voluntary interview and then an arrest made if circumstances required.
Queen's Bench Division Findings
The Appellant (the Police Commissioner) appealed the Trial Judge's decision on the grounds that the Judge had erred in finding that the arresting officer's belief in the need to arrest the Respondent was not objectively reasonable.
MR cross-appealed, seeking to uphold the decision on the additional basis that there were no objectively reasonable grounds for the arresting officer's suspicion.
There were two issues to be considered:
- Was the officer's suspicion that the Respondent had committed the offence of harassment objectively justified at the point at which he arrested the Respondent?
- Was it objectively necessary to arrest the Respondent to allow the prompt and effective investigation of the offence or of the conduct of the Respondent?
The Court agreed that the threshold for suspicion was low and found no error in the conclusion that the arresting officer's suspicion was objectively reasonable following Castorina v Chief Constable of Surrey (1988) 160 LG Rev 241).
In considering whether it was objectively necessary to arrest the Respondent, Mrs Justice Thornton considered Hayes and also the recent case authority of (R (on the application of TL) v Chief Constable of Surrey [2017] EWHC 129 (Admin)) in which it was said that the concept underlying s24(5) was necessity and that this was not a synonym for "desirable" or "convenient".
The Court held that it was not necessary to arrest the Respondent at the police station. The Appellant was in possession of his mobile phone and the Respondent had attended the police station voluntarily when requested.
The Appellant had described the Respondent as a ‘shady’ character who had been secretive during his relationship with A. However, this character description had not appeared in the crime report or in the previous judgment. There was a material distinction between the Respondent's behaviour in his personal relationship and how he had engaged with the MPS.
The Court could not find a rational basis for the arrest. The obvious alternative to arrest would have been to interview the Respondent, establish his identity and obtain his mobile telephone, noting that any difficulties in this regard could have necessitated an arrest at that juncture.
The Appeal and Cross- Appeal were dismissed.
Comment
The requirements for necessity of arrest need to be considered on a case by case basis. If an officer has not given any thought to alternatives to arrest then they are exposed to the risk of being found to have had no objectively reasonable grounds for their belief that the arrest was necessary.
As the Court held, the test of necessity is more than simply ‘desirable’ or ‘convenient’ or ‘reasonable’. Mrs Justice Thornton noted that it is a high bar, introduced for all offences by the Serious Organised Crime and Police Act 2005 in order to tighten the accountability of police officers.
