Review failure made detention unlawful
Roberts v Chief Constable of Cheshire Constabulary
(1999) The Times, January 27 COURT OF APPEAL
The Statutes
Section 34 of the 1984 Act provides:
"(1) A person arrested for an offence shall not be kept in police detention except in accordance with ... this Part of this Act."
Section 40 provides:
"(1) Reviews of detention of each person in police detention in connection with the investigation of an offence shall be carried out periodically in accordance with the following provisions of this section ... (b) in the case of a person who has been arrested but not charged, by an officer of at least the rank of inspector who had not been directly involved in the investigation.
"(2) The officer to whom it falls to carry out a review is ... a 'review officer'.
"(3) ... (a) the first review shall be not later than six hours after the detention was first authorised..."
LORD JUSTICE CLARKE said that at 10.50pm on July 30, 1992, Roberts was arrested by Cheshire police on suspicion of conspiracy to burgle. He was taken to Northwich police station where his detention was authorised by the custody officer at 11.25pm.
At about 1am on July 31 he was escorted to Macclesfield police station where he arrived at 1.45am and his continued detention was authorised by the custody officer there.
Roberts was asleep at 4, 5, 6 and 7am. But he might have woken up from time to time and it seemed likely that during that period he would have been aware that he was in a cell.
At 7.45am a police inspector conducted the first case review and
authorised his further detention. There was a further case review at 5.20pm and at 6.55pm he was released without charge.
In those circumstances, the judge held that Roberts was being unlawfully detained as from 5.25am. His Lordship agreed. Section 34(1) of the Act was mandatory. It provided that a person must not be kept in police detention except in accordance with the relevant provisions of the Act.
Roberts was detained at 11.25pm on July 30, so that by section 40(1)(b) a review of his detention should have taken place before 5.25am on July 31. No such review took place.
It followed that from that time Roberts was not being detained in accordance with the relevant provisions of the Act and that his detention was thereafter unlawful until some event occurred to make it lawful.
Counsel for the police submitted that at 5.25am there existed circumstances which were sufficient to justify Roberts's continued detention; and that in those circumstances his continued detention was not unlawful. He relied on Clerk & Lindsell on Torts (17th edition (1995) paragraphs 16-119 and 16-120):
"It is difficult to see how a failure to review would render continued detention false imprisonment. And presumably a plaintiff would have to prove not only a breach of section 40 but that, had the review taken place, he would have been released from custody."
That had to be read in the light of the Third Cumulative Supplement to the 17th edition which contained the following against the reference to paragraph 16-119:
"It is submitted that a continuation of detention beyond the period prescribed in the ... Act ... would constitute false imprisonment ... On the expiry of the prescribed period of detention, any authority to continue the detention of the arrested person ceases to exist and continued detention is unlawful."
That passage in the supplement supported the judge's conclusion and was to be preferred to that in the main work.
His Lordship was unable to accept Counsel for the police's submission. From 5.25am Roberts was not being detained in accordance with Part IV of the Act because no review was carried out as required by section 40(1) and (3)(a).
It was nothing to the point to say that the detention would have been lawful if a review had been carried out, or that there were grounds which would have justified continued detention.
Part IV existed to ensure that members of the public were not detained save in certain defined circumstances. In all other circumstances every member of the public was entitled to his or her liberty.
Roberts was entitled to the benefit of a review before 5.25am. In the absence of a review he was in principle entitled to his liberty, he was being deprived of his liberty without lawful excuse, and it followed that this was a case of false imprisonment.
The judge held that after 5.25am Roberts was unlawfully detained until his release at 6.55pm. The police accepted at the trial that if, contrary to their case, the detention was unlawful after 5.25am, it remained unlawful until Roberts was released.
Whether or not that was so had no effect upon the outcome as the judge awarded damages of £500 to compensate Roberts for being unlawfully detained for two hours and 20 minutes between 5.25 and 7.45am.
In those circumstances it was not necessary to analyse the true legal position from 7.45am. But it was at least arguable that, although the first review was late, it was nevertheless a review under the Act and was sufficient to make Roberts's continued detention lawful as from that time.
As to damages, the question was whether the judge should have awarded only nominal damages on the basis that if the police had carried out a review at 5.25am, Roberts would have been detained anyway.
It was common ground that the tort of false imprisonment was actionable without proof of special damage. As a matter of general principle a plaintiff was entitled to be put into the position in which he would have been if the tort had not been committed.
The wrong was not the failure to carry out the review, but the continued detention. If the wrong had not been committed Roberts would not have been detained between 5.25am and 7.45am and, as a matter of principle, he was entitled to be compensated for having been detained for that time.
A person who was falsely imprisoned but who was unaware of his imprisonment and who suffered no harm would be entitled to only nominal damages. Roberts was not, however, in that position.
He was no doubt aware of his imprisonment and was entitled to be compensated for being unlawfully detained in a police cell for two hours and 20 minutes when, in the absence of a review, he should have been released.
No question of quantum arose on the appeal. But £500 was substantially more than his Lordship would have awarded to compensate Roberts for false imprisonment for that period during which he was asleep, especially when, if a review had been carried out at 5.25am, his detention would have been lawful.
The Decision
The failure of police to comply with the mandatory limitations on police detention in section 34 of the Police and Criminal Evidence Act 1984 and, in particular, the requirement in section 40 to carry out a timely review of a person's detention in custody before charge, rendered the previously lawful detention unlawful and entitled the detained person to damages for false imprisonment.
The Court of Appeal so held, dismissing an appeal by the Chief Constable of Cheshire Constabulary, from the judgment at Chester County Court on October 1997, that the plaintiff, Gary Roberts, was entitled to £500 damages in his action against the police for false imprisonment arising out of the late review of his continued detention at Macclesfield police station.
Comment
LIMITS ON DETENTION & REVIEW
The Police Promotion Manual, Evidence & Procedure, points out, "Once detention has been authorised this does not mean that a person can be detained indefinitely. S34 of PACE 1984 requires the custody officer to release a person if he/she becomes aware that the grounds for detention no longer apply and that no other grounds exist for the continuing detention (unless the person appears to be unlawfully at large). If there are additional grounds, these should be recorded in the custody record and the person informed of these additional grounds in the same way as when a person is first detained. It is only the custody officer who can authorise the release of a detained person (s. 34(3)). It is a breach of the PACE Codes of Practice for anyone else to release a detained person without first obtaining the authority of the custody officer. In addition to the requirement to release a person should the grounds for detention no longer exist, there are also maximum time limits for which a person can be detained without charge. Once this limit has been reached, it will be necessary to proceed by summons or by warrant. There are also limits on the time a person can be kept in custody after being charged, refused bail and appearing at court. Page 141 1998/99 Edition.
Effect of a Breach of PACE
An analysis of the effect of Roberts and Osman reported in this edition.
Cases had been developing to suggest that a breach of PACE 1984 did not necessarily give rise to a cause of action.
In Nathaniel V Commissioner of Police of the Metropolis Eady J ruled that a breach of section 64 of PACE did not sound in damages, either as a breach of statutory duty or in negligence. Similarly, in Victory V Commissioner of Police of the Metropolis it was ruled that a breach of section 2 of PACE did not render a search unlawful. Two recent decisions come to a different conclusion.
Roberts
In Roberts V Chief Constable 0f Cheshire Police [1999] 1 WLR 662, (1999) The Times, January 27 the Court of Appeal held that a failure to carry out a review of detention in accordance with section 40 of PACE 1984 rendered a subsequent period of detention unlawful. The claimant had been arrested at 10.5Opm and his detention was authorised at 1125pm. The first review should therefore have been carried out at 5.25am. However, it was not done until 7.45am. There was a further review at 5.2Opm. The claimant was released at 6.55pm.
The Court of Appeal held that the detention after 5.25am was unlawful merely on the basis that the words in section 34 of PACE are mandatory. It was irrelevant that if a review had been carried out at 5.25am the claimant's continued detention would have been authorised.
The decision of the Court of Appeal is unsatisfactory in a number of respects. First, is this a correct analysis; or a correct interpretation of the effect of sections 34 and 40 of PACE. Second, there is no analysis of the true position once a late review has been carried out and, in particular, whether continued detention after a late review is unlawful.
Osman
In Osman V Director of Public Prosecutions The Times 28 September 1999 the Divisional Court held that a breach of section 2 of PACE rendered a search unlawful. Again, the decision is rather unsatisfactory. It appears that the arguments which were accepted in Victory(that the words of section 2 were directory and that where parliament considered that a breach of PACE rendered an act unlawful it specifically said so were not advanced in Osman. Moreover, there is no analysis of the parliamentary intention beyond the superficial assumption that the words in section 2 are mandatory.
However, the decision is likely to be followed by Courts below, unless they can be persuaded that it is wrongly decided. It follows that wherever there is a breach of section 2 the search (and any subsequent arrest and detention for assaulting a police officer in the execution of his duty) are likely to be ruled unlawful.
Conclusions
Unless courts accept that Robert v and Osman were wrongly decided, or distinguish them on other grounds, they will be followed.
Accordingly, where a review has been carried out late then, subject to the power to postpone a review, continued detention will be unlawful at least until a review is carried out.
Similarly, a breach of section 2 of PACE 1984 will render a search (and potentially a subsequent arrest and detention) unlawful.
False Imprisonment
On the question of Quantum in £s for being held (false Imprisonment) see Thompson v Commissioner of the Metropolis, Hsu v Commissioner of Metropolis [1997] 2 All E.R. 762; (1997) The Times, 20 February The Court of Appeal gave general guidelines-Damages guidelines for jury trying police actions Guidelines as to the directions to be given to a jury assessing damages in civil actions against the police were given by the Court of Appeal in order to establish some relationship between such awards and damages for personal injuries.
An award of £50,000 was the absolute maximum that was appropriate for exemplary damages in such cases and then only where officers of at least the rank of superintendent had been involved in the unlawful conduct.
The Court of Appeal so held in a reserved judgment dismissing an appeal by the Commissioner of Police of the Metropolis against an award of £51,500 damages at Central London County Court on June 12, 1995 to Claudette Thompson for false imprisonment, assault and malicious prosecution.
Guidance that should be given
In a straightforward case of wrongful arrest and imprisonment the starting point was likely to be about £500 for the first hour during which the plaintiff had been deprived of his or her liberty. After the first hour an additional sum was to be awarded, but that sum should be on a reducing scale so as to keep the damages proportionate with those payable in personal injury cases and because the plaintiff was entitled to have a higher rate of compensation for the initial shock of being arrested. As a guideline the court considered, for example, that a plaintiff who had been wrongly kept in custody for 24 hours should for that alone normally be regarded as entitled to an award of about £3,000.
The figures given would of course require adjusting in the future for inflation.
Some doubt has been cast on this by R v Governor of Brockhill Prison, Ex parte Evans (No 2) [1999] 2 WLR 103 where the court preferred a Global approach, however that was a case of a prisoner already lawfully detained in HM Prison being held beyond the release date due to an administrative mistake on the interpretation of the law.
Rob Jerrard