Update: PACE

It is rare for police powers to be front-page news. However, in the last quarter, the issue has been hitting the headlines '“ first, with the recent High Court decision in Hookway and subsequent emergency legislation, and, second, the inevitable clamour for greater police powers arising from the recent riots.

Time in detention

The Police (Detention and Bail) Act 2011 received Royal Assent on 12 July 2011. The bill was rushed through parliament in response to a High Court judgment in the case of R (Chief Constable of Greater Manchester Police) v City of Salford Magistrates' Court and Hookway [2011] EWHC 1578 (Admin), which had rendered 25 years of policing practice in England and Wales unlawful and caused chaos and confusion among police officers.

Mr Hookway was arrested on suspicion of murder and was subsequently detained at the police station. During his initial period in custody Hookway's detention was extended from 24 hours to 36 hours in accordance with section 43 of the Police and Criminal Evidence Act 1984 (PACE). Hookway was released from police custody after 27 hours and 57 minutes. Five months later the police detained him under his original arrest and made an application to the court for an extension of the detention period under section 44 of PACE. The district judge dismissed this application on the grounds that the original warrant had expired five months earlier and could no longer be extended.

On 19 May Mr Justice McCombe, sitting as a single judge of the High Court, confirmed the district judge's decision in a judicial review. He held that the period of extension runs from the relevant time (time of arrival at the police station) and there is no provision in PACE to allow the clock to stop running if the suspect is released on bail.

For more than 25 years it had been the case that following arrest the detention time could be paused when the suspect was released and police investigation ongoing. Often suspects were bailed for months, sometimes years, before a decision on charge was made. McCombe J's judgment revised this approach and gave section 44 its literal meaning, requiring that any period of detention be limited to a period of 96 hours. In his ruling, the judge interpreted the detention period to mean a continuous period of time which cannot be interrupted when a suspect is released on bail.

Following the ruling, fresh guidance was issued to police forces by the Association of Chief of Police Officers, which said that, in cases where suspects were released on bail pending further investigation beyond a four-day period, they would need to be re-arrested in order to detain or question them further. A re-arrest could only take place with 'new evidence'. This guidance did little to quell the chaos and confusion for the 80,000 suspects on police bail at that time.

On 5 July the government tabled emergency legislation in response to the High Court decision, and the Police (Detention and Bail) Act 2011 came into force on 12 July. The effect of this Act is to make clear that the maximum period of time for which an arrested person can be detained relates to the actual time spent in custody, and that all time spent by an arrested person on police bail shall not be counted when calculating the total period of time spent in detention before charge. The Act effectively provides statutory authority for the practice adopted by the police before the High Court's decision, and section 1(3) of the Act sets out its purported retrospective effect. In light of this new law, the police's appeal against McCombe J's decision was withdrawn.

The retrospective effect of the 2011 Act could itself be the subject of legal challenge on the basis that it deprives individuals of their rights under the European Convention on Human Rights. It could be argued that the effect of the Act is to expunge any existing claim for unlawful detention that could have otherwise been brought, up to the time of the commencement of the Act. As a result it could be argued that the Act itself is incompatible with article 5 and/or article 1, protocol 1. Such claims would rely on the High Court's interpretation of part IV of PACE in the Hookway decision and could be brought either as a common law claim for false imprisonment or a claim under the Human Rights Act 1998.

Necessity of arrest

In the case of Hayes v The Chief Constable of Merseyside Police [2011] EWCA Civ 911, the Court of Appeal (Civil Division) considered the necessity test for the statutory power of arrest under section 24 of PACE 1984.

The case concerned an allegation of assault that had been made against the appellant. The police had asked the appellant to attend the police station in connection with the allegation and, when he did so, arrested him. Once the complainant was notified that the appellant was in custody, the complainant indicated to the police that he no longer wished to pursue the matter and in due course the appellant was released. The appellant sought to sue the chief constable for wrongful arrest on the basis that the arresting officer did not actively consider all the possible alternatives to arrest but merely formed the view that arrest was necessary.

It was held that an arresting officer ought to apply his mind to alternatives short of arrest, and if he did not do so he was open to challenge, but 'the challenge was not one which required the officer's decision to be subjected to a full-blown public law reasons challenge'. The court confirmed that a two-part test applied: first, did the officer actually believe that arrest was necessary and for a reason under section 24(5) (in this case, for the prompt and effective investigation of the offence) and, second, was that belief, on the information known to him at the time, objectively reasonable? On this basis, there were no grounds for concluding that the arrest was unlawful.

After the riots

In the aftermath of the riots and public unrest which took place in early August, the home secretary, Theresa May, announced a series of proposed reforms to police powers. These included:

'¢ Extension of gang injunctions to those under 18 years of age. However, this is no more than a restatement of pre-existing policy. On 31 January 2011, part IV of Policing and Crime Act 2009 came into force. Section 34 of the Act gave police and local authorities the power to apply for injunctions in respect of named individuals to prevent them from engaging in certain conduct associated with gang activity, such as entering specified geographical areas and wearing certain articles of clothing. While the Act only applies to those aged 18 and above, provision for enforcement action to be taken against under 18s had already been introduced in the Crime and Security Act 2010, and in fact injunctions specifically for 14-17 year olds were already being piloted throughout the country.

'¢ Expanding the right to remove face coverings. At present, section 60AA of the Criminal Justice and Public Order Act gives police the power to remove face coverings: however, this power is limited to a specific geographic location and/or a limited period of time. The proposal appears to be that this power be extended to cover any situation where the officer has a reasonable belief that such face coverings are related to criminal activity. If such a power were to be introduced, its exercise would not of course be limited to public disorder of a type seen this summer but would equally readily be utilised in demonstration and protest situations.

'¢ Power to impose a general curfew in a particular area. At present, there is only the power to impose a curfew in respect of an individual as a condition of his bail, as part of an ASBO, or, alternatively, as part of a sentence imposed upon conviction. There also exists a range of civil 'dispersal' powers which allow the police to order groups of people off the streets when certain conditions are met. However, the intention is, it seems, to create a new general power to impose a blanket curfew which could be invoked in times of public unrest. Presumably, this would be a civil order, breach of which would constitute a criminal offence. The introduction of such a potentially draconian power has caused concern to Liberty and other human rights organisations.

'¢ Power to impose a curfew on specific individuals under the age of 16. At present, such a curfew can only be imposed as part of a conditional bail package, an ASBO or a sentence. Again, it appears that the intention is to create a new, freestanding civil remedy backed up by criminal sanctions.

The home secretary has also indicated that she will issue new guidance relating to public order policing. Practitioners should keep an eye out for this as well as monitoring potential statutory changes.

While a number of the proposed reforms are measures which were already on the statute books or at least in contemplation, there is no doubt that the current political climate will favour quicker and more drastic changes. It may also lead to a lesser degree of opposition and scrutiny than would otherwise be the case. It is to be hoped that the coalition will consider carefully whether powers under existing legislation could be used more effectively before expanding the ever-increasing matrix of civil and criminal remedies.