The year in review: 2023’s key police law developments

The year 2023 has presented many challenges for policing, including a rise in civil unrest and large-scale public assembly. As well as operational demands brought about by such causes, forces are also subject to harsher budget cuts and unprecedentedly low levels of public trust. All these factors may lead to an increase in civil claims and significant operational strain on resources.

Here, we review three of the biggest developments that the past year has brought for policing legislation, and what their implications could be on forces and operational decisions.

Public order

Legislating public order policing has been a contentious issue for well over a year following the introduction of the Police, Crime, Sentencing and Courts Act in 2022 (PCSC). The position became even more contentious with the Public Order Act 2023 (POA) receiving royal assent in May of this year mere days before the coronation of the new King. The POA was introduced relatively discreetly with little to no mainstream media coverage despite the wide-reaching ramifications and opposition to the content of the provisions.

Also introduced was the controversial secondary legislation, The Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023. These regulations make amendments to provisions in the Public Order Act 1986 (c. 64) concerning the meaning of the expression ‘serious disruption to the life of the community’.

Section 12 of the Act gives the police a power to impose conditions on people organising and taking part in public processions. A senior police officer can exercise this power if they reasonably believe that a procession may result in serious disruption to the life of the community. Section 14 of the Act gives the police a similar power to that in Section 12, in relation to public assembly.

The reason the regulations are thought to be contentious is that the Act introduces various powers previously removed from the draft public order bill (later the POA) during the bill’s journey through parliament. Critics claimed that by re-introducing these provisions via secondary legislation, and circumventing the due process draft primary legislation is subject to, was fundamentally infringing the human rights of activists.

The purported intention of the public order legislation introduced – primary and secondary – was to improve the police’s ability to manage protests and take a proactive approach to prevent such disruption happening in the first place. It was claimed that this in turn would ensure that police could better balance the rights of activists engaged in these protests with the rights of others to go about their daily business unhindered and to focus on keeping the public safe. Critics of the legislation have argued that it disproportionately limits the right to protest and restricts freedom of movement and assembly (Articles 10 and 11 of the Human Rights Act (HRA) 1998). They argue that the result of this is essentially seeking to ban protests. Legislating in this area is an inevitable exercise of walking a tightrope between Articles 10 and 11 of the HRA versus Article 5 HRA.

Given the number of new offences created and the harsher punishments for existing offences, the impact on resourcing is likely to be significant. An increase in arrests will lead to delays, potentially overcrowded or full custody suites and removal of personnel at the site of the protests themselves. 

This area should be watched very closely indeed given the potential ramifications on police budgets, custody suite facility overcrowding, officer training and, as ever, public opinion. One thing that remains consistently and abundantly clear, now this legislation has been in force for several months, is that it remains one of the most divisive pieces of legislation relevant to modern policing.

Necessity to arrest

In the case of DE v CC of West Midlands Police [2023] EWHC 146, the Chief Constable of West Midlands Police successfully defended an appeal to the High Court following the dismissal of the appellant’s false imprisonment claim at trial. Mrs Justice Hill upheld the initial decision judge’s findings that in the circumstances of the case it was justified to rely on the Section 24(5)(e) PACE (Police and Criminal Evidence Act 1984) ‘prompt and effective investigation’ criterion, where the arresting officer’s sole reason for believing the arrest to be necessary was an intention to impose bail conditions.

Necessity to arrest is quite rightly a very high evidential burden, and a decision to arrest must be taken seriously and with consideration of alternatives even if this is only cursory. Necessity is often cited in civil claims with claimants suggesting that a voluntary interview would have been more appropriate. It will remain vital that officers continue to consider the alternatives and the suitability of non-arrest options, but it is a helpful reminder for police law practitioners and forces that a cursory consideration, in the form of a summary rejection, can be sufficient to meet this burden upon officers’ criterion where the arresting officer’s sole reason for believing the arrest to be necessary is an intention to impose bail conditions.

It is a circumstance in many police investigations where there is a concern that the suspect may contact the complainant to intimidate, and this would clearly undermine an ‘effective’ investigation. The specific references of Mrs Justice Hill to the judgment of TL at paragraphs 50-52 confirm that there is a ‘spectrum’ between an officer who considers bail conditions may be appropriate on a general level but does not consider what is specifically required and an officer who has a specific requirement in mind, i.e., protecting particular witness(es) from intimidation that would undermine an investigation were it to occur. The first approach would clearly not meet the safeguards in s24(5)(e), but the latter would.

As with all previous decisions in this area, the issue remains highly fact specific and, as such, careful analysis of the wealth of authorities in this area will be required. The case is also a valuable insight into when the court will find that it is reasonable to rely on the s24(5)(e) PACE ‘prompt and effective investigation’ area, which will be required when police forces and police law practitioners are considering cases run on this basis going into the new year.

Assumption of responsibility

Finally, a recent judgment in the case of Woodcock v Chief Constable of Northamptonshire [2023] EWHC 1062 (KB) could mark one of the most significant developments in common law for public bodies in decades. It threatens to disrupt a well-established series of precedents when it comes to the assumed ‘duty of care’ and responsibility held by law enforcement. If unchallenged, it may have a dramatic impact on operational policing decisions – including defensive policing – and could lead to more claims against public authorities, including police forces.

The central issue in the Woodcock judgment was whether there are circumstances where the police have a duty to protect or warn, and under what circumstances this duty arises.

It was held that the police generally owe no civil liability duty of care to protect the public at large, and therefore are not liable for injury or damage stemming from criminal actions. They are, however, subject to the general common law principles that would impose a duty of care on anyone. In his ruling, the judge set out the relevant case law and the two exceptions to the general rule that police are not liable and owe no duty of care for failing to act, or to prevent harm:

1. The police have assumed a specific responsibility to protect a specific member of the public from attack;
2. There are exceptional or specific circumstances that create a duty to act to protect the victim, and it would be an ‘affront to justice’ if they were not held to account to the victim.

In order to engage a duty of care on the police to protect or warn a member of the public, the judge outlined that a close analysis would be required by the courts of the following factors:

1. The foreseeability of harm and the seriousness of that harm to the specific member of the public;
2. The reported or known actions/words of the specific alleged protagonist in relation to the feared or threatened harm;
3. The course of dealing between the potential victim, the police and the alleged protagonist, focusing on proximity; and
4. The express or implied words or actions of the police in relation to protecting the victim from attack by the protagonist, and how much the victim (if any) relied on the police for protection and as a result whether the public policy reasons for refusing to impose a duty of care outweighed the public policy in providing compensation for tortiously caused damage or injury.

To date, the courts have been reluctant to find public authorities liable for omissions. While this case contained a set of facts that gave rise to ‘exceptional’ circumstances, it is clear that as more and more cases are heard the threshold could be lowered as to what will be considered ‘exceptional’. If this happens, the floodgates could potentially open for future claims of this nature against public authorities.

These could be similar to those currently pursued under Article 2 and 3 of the Human Rights Act 1998. If pursued under the tort of negligence, however, they would benefit from a longer limitation period. 

A police officer’s job is to first and foremost protect the public. It is unclear whether guidance will now be given about the circumstances or manner in which safety plans will be given to potential victims of crime. ‘Defensive policing’ may now be a risk forces have to consider. All this of course depends on whether the case is appealed, which remains to be seen.

The road ahead

It is unclear whether these issues will continue to be at the centre of police law claims in 2024 or whether we will see new trends and issues emerging in an ever-evolving legal landscape. Courts are still experiencing the delays to matters reaching trial following the covid-19 pandemic and the effects of that are likely to continue for some time yet. The result of this is a delay in cases pursued under new legislation being heard and the outcome allowing legal precedent to develop.

Civil unrest certainly does not appear to be an issue that will be on the decline going into 2024 given the litany of political, environmental and moral causes that endure. As such it is highly likely that the challenges to forces will also remain, including a potential growth area of civil actions on a group litigation or individual basis.

In addition, it remains to be seen whether the law on negligence is indeed fixed or whether it will be plunged into a state of flux given the judgment in Woodcock, which appears to disrupt the well-established series of precedents if unchallenged. This case should be watched very closely in the event that an appeal follows in due course. Should the finding not be appealed, it may lead to forces reviewing operational guidance to officers in domestic cases and could even lead to defensive policing being a risk that forces now have to consider.

A point to watch for the future may be the ‘Right Care, Right Person’ (RCRP) programme. This is an operational model that changes the way the emergency services respond to calls involving concerns about mental health. The Metropolitan Police report that it is in the process of being rolled out across forces nationwide as part of ongoing work between police forces, health providers and the government.

The model is aimed at making sure the right agency deals with health-related calls, instead of the police being the default first responder as is currently the case in most areas. It has been shown to improve outcomes, reduce demand on all services, and make sure the right care is being delivered by the right person. As a result of implementing the RCRP, it is reported that Humberside Police saw average incidents per month reduce by 508 deployments – equating to 1,132 officer hours. This has allowed the force to reallocate saved resource to other specialist teams.

What also remains to be seen is the impact of the government’s Anti-Social Behaviour Action Plan announced in March. The initiatives are due to be rolled out in all areas of England and Wales from 2024. It is thought the measures will include increased patrols and should this initiative lead to increased arrests, it may also in turn lead to an increase in civil claims arising out of arrests for anti-social behaviour.

It is hoped, however, that intentions to recruit additional police officers will lead to increased resources and hopefully reduce the issues seen in the police law sector throughout 2023, but only time will tell.

Emelia Bezant-Gahan is an associate at Weightmans
weightmans.com