Police power of entry limited to pursuit.
D'Souza v Director of Public Prosecutions.
In D'Souza v Director of Public Prosecutions (1992), The Times, 16 October, the House of Lords have settled a legal point upon which academics disagree. The subject is the interpretation of s.17(1)(d) of the PACE Act 1984. Bevan & Lidstone, The Investigation of Crime, para 4.34 state, "This power replaces the ancient position at common law.... Pursuing would clearly cover 'hot pursuit', as it did under the common law (Mclorie v Oxford (1982). But it may extend further as to permit entry some days, months or even years after escape. This literal reading of the section is preferred, for it cannot be supposed that a constable who, for example, receives reliable information while on patrol that an escaped prisoner is hiding in certain premises some weeks after the escape, must seek a warrant or must rely on the consent of the occupier, before entering in order to arrest the person".
Zander, says at page 42, "It is not certain whether the power only exists in hot pursuit". The case concerns a mental patient, "at large".
S.18 of the Mental Health Act 1983 provides:-
"(1) Where a patient who is for the time being liable to be detained... in a hospital - (a) absents himself without leave...he may...be taken into custody and returned to the hospital...by any constable."
On 13 October D'Souza's mother, who had a history of mental illness, was admitted to hospital for assessment under the 1983 Act. On 16 October D'Souza's father went to see his wife at the hospital. By 3.55pm the mother was back home. Three police constables and two nurses went to the house, arriving about 7pm. They made it known that they were there to take the mother back to the hospital. D'Souza declined to open the door, although the officers threatened to force entry. The glass panel was broken and entry effected.
The crown court found that the officers were attacked by D'Souza and her father and that the personal violence was initiated by D'Souza. There was a conviction for assault on police.
Justification for entering the house had to be sought in s.17 of the PACE Act 1984, which provides:-
"(1) ...A constable may enter and search any premises for the purpose-...(d) of recapturing a person who is unlawfully at large and whom he is pursuing."
Therefore, to justify entry for the purpose of recapturing the mother, she had to be a person (i) who was unlawfully at large and (ii) whom the police were pursuing. The court concluded that the Expression "unlawfully at large" did not have a technical or special meaning.
A person who was detained under s.6(2) of the 1983 Act was lawfully detained. D'Souza's mother was such a person.
S.6(2) of the Mental Health Act 1983 provides:-
"Where a patient is admitted...to the hospital specified in such an application...the application shall be sufficient authority for the managers to detain the patient in the hospital..."
Turning to the second question, many illustrations of pursuit, which made it lawful to enter premises without a warrant in order to recapture an escaper, described recapture by the very constable from whom the person arrested had escaped. That was not to say that s.17(1)(d) applied only in such circumstances.
Assuming that the power of entry to recapture could apply in a case like the present, provided the constable was "pursuing" the patient, there was no evidence from which pursuit by the constables before the break-in could be inferred.
The verb in the clause "whom he is pursuing" was in the present continuous tense and, therefore, give or take a few seconds or minutes, the pursuit had to be contemporaneous with the entry into the premises. There had to be an act of pursuit, a chase, however short in time and distance.
It was not enough for the police to form an intention to arrest, which they put into practice by resorting to the premises where they believed that the person whom they sought might be found.
By virtue of s.17(2)(a) every constable who intended to arrest a person was seeking him and was obliged to have reasonable grounds for believing him to be on the premises he proposed to enter.
A constable acting on information received who simply went to a house where he reasonably, and correctly, believed that the person he was seeking could be found, could not conceivably say that he was pursuing that person. To do so would empty "pursuing" of all meaning.
If Parliament had intended the police to have a right of entry in order to recapture absconding patients independently of the 1984 Act, or of the law in force in 1983, one would have expected an express enactment to that effect. So far from that having happened, s.135(2) of the 1983 Act expressly authorised the issue of a warrant to retake a patient, and that provision had to be regarded as superfluous if the Crown's case and the Divisional Court's judgment were correct.
Their Lordships unanimously agreed that the case should be remitted to the crown court with a direction (i) to revoke the orders conditionally discharging D'Souza and requiring her to pay compensation, and (ii) to dismiss the charges of assaulting three police officers in the execution of their duty.
Had the offence in question been an "arrestable offence" it would have presented no problem since the officers could have used the power in s.17(1)(b). One cannot fault their Lordships when they say that the verb in the clause "whom he is pursuing" was in the present continuing tense, however an amendment to s.17(1)(d) would make more sense of the subsection; why not give police officers 24 hours to retake the patient, after all in this case it was only after three hours and five minutes that the patient was retaken.
Rob Jerrard