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Police – Police officer – Powers – Detention – Breach of the peace – Statutory provisions not applying to detention for breach of the peace – Police and Criminal Evidence Act 1984 – European Convention on Human Rights, art 5 – Human Rights Act 1998, s 3.
The claimant was arrested by officers of the defendant police force for breach of the peace. He was taken to a police station where the custody officer recorded that the claimant’s actions warranted his being placed before a magistrates’ court for a bind over to keep the peace. The officers were of the opinion that the provisions of the Police and Criminal Evidence Act 1984 did not apply and that, having decided to take the claimant before the Justices, they had no power to release him until after he had appeared before the magistrates’ court. The claimant was therefore detained in police custody overnight.
He was taken to the magistrates’ court the following morning, but no order was made. The claimant subsequently sought damages against the defendant for, inter alia, unlawful detention, on the basis that the 1984 Act had given the police the power to release him, on bail if necessary, before he appeared before the magistrates, and that the custody officer ought to have released him once it was appreciated that there was no longer a real risk of a repeated breach of the peace.
The judge accepted those submissions and found that the European Convention on Human Rights required the term ‘offence’, where it appeared in the 1984 Act, to be interpreted so as to include breaches of the peace. The judge further found that after six hours of detention, the custody officer should reasonably have concluded that there was no prospect of the claimant repeating a breach of the peace, and that the claimant should have been released at that stage. The defendant appealed against that decision on the ground that the provisions of the 1984 Act did not apply where a person was arrested and detained for a breach of the peace.
The appeal would be dismissed.
It was clearly established as a matter of domestic law that a breach of the peace was not a criminal offence. There was nothing in the 1984 Act which supported an extended meaning of ‘offence’ so as to include a breach of the peace. The word ‘offence’, where it appeared in the 1984, did not, therefore, include breach of the peace. The common law provided defendants with a considerable measure of protection against arbitrary arrest and/or unreasonable detention for a breach of the peace. If police considered, or ought reasonably to have considered, that there was no longer a real danger that, if released, the detained person would commit or renew his breach of the peace, and a bind over was unnecessary, continued detention would be unlawful at common law. Furthermore, the European Court on Human Rights had previously decided that the common law rules relating to breach of the peace complied with art 5 of the European Convention on Human Rights, concerning the right to liberty and freedom from unlawful detention.
The court knew that breach of the peace was not classified as an offence under English law. It was not permissible to reason that since a breach of the peace had to be regarded as an ‘offence’ within the meaning of art 5 of the Convention, it had also to be an ‘offence’ within the meaning of the 1984 Act. In any event, there was no requirement under s 3 of the Human Rights Act 1998 to interpret and give effect to the 1984 Act in a way which was compatible with the Convention because the 1984 Act pre-dated the coming into force of the 1998 Act.
In the instant case, therefore, the judge had erred in construing the word ‘offence’ in the 1984 Act as he had, and in finding that the claimant should have been released under the provisions in the 1984 Act. However, he had been entitled to find that the claimant should have been released earlier on a simple application of common law principles.
Steel v UK 5 BHRC 339 considered; R v County of London Quarter Sessions Appeals
Committee, ex p Metropolitan Police Comr [1948] 1 All ER 72 and Addison v
Chief Constable of West Midlands Police (CA, 10 March 1995, unreported) applied.
Ramby De Mello (instructed by Mian & Co, Birmingham) for the claimant.
Aoreeja Chatterjee (instructed by Sharpe Pritchard) for the defendant.
Melanie Martyn Barrister.
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