Update: police

On 8 July 2010, the home secretary announced that she would change the test for authorisation for the use of section 44 powers from requiring a search to be 'expedient' for the prevention of terrorism, to the stricter test of it being 'necessary' for that purpose. This should now draw a line under the excessive and disproportionate use of the powers and bring about a more balanced approach to policing on our streets.

DNA retention '“ leapfrog appeal

Another recent area of development is the retention of DNA. R (GC) v Commissioner of Police of the Metropolis (defendant) & Secretary of State for the Home Department (interested party) and R (C) v Commissioner of Police of the Metropolis (defendant) & Secretary of State for the Home Department (interested party) QBD [Admin] 16 July 2010 were applications for judicial review of the policy to retain biometric samples for an indefinite period, save in exceptional circumstances.

It was held that the Administrative Court was bound to follow the decision of the House of Lords in R (S) v Chief Constable of South Yorkshire [2004] UKHL 39 that the retention did not infringe an individual's right under the ECHR article 8 rather than the decision of the ECtHR in S v United Kingdom [2009] 48 EHRR 50 that the blanket and indiscriminate nature of the powers of retention of the fingerprint and DNA material of any person suspected but not convicted of a criminal offence was contrary to article 8. The court, however, did grant leave for a leapfrog appeal to the Supreme Court to determine the issue of precedent.

Right to resist

In the cases of Cumberbatch v Crown Prosecution Service and Ali v Department of Public Prosecutions [2009] EWHC 3353 (Admin) it was held that where the arrest of an individual by a police officer was unlawful, other police officers who come to the assistance of their fellow colleagues were not acting in the execution of their duty, so that an individual who used reasonable force to resist those police officers was not guilty of an offence contrary to the Police Act 1996 section 89(2).

This case reinstates the common law set down by Christie v Leachinsky [1947] AC 573, that any person has the right to use reasonable force to resist an unlawful arrest, or to assist another to resist an unlawful arrest. The judgment of Lord Simonds at page 591 is a useful reminder of the fundamental right to liberty and freedom: 'I would say that it is the right of every citizen to be free from arrest unless there is in some other citizen, whether a constable or not, the right to arrest him. And I would say next that it is the corollary of that right of every citizen to be thus free from arrest that he should be entitled to resist arrest unless that arrest is lawful.'

False imprisonment

It was held that the circumstances of AN v Secretary of State for the Home Department and Secretary of State for the Home Department v (1) AE (2) AF [2010] EWCA Civ 869 were not conceptually different from, or materially less serious than, that of a case involving deprivation of liberty, and the same principles applied as in R v Governor of Brockhill Ex p Evans (No 2) [2001] 2 AC 19 HL.

The appellant (AN) appealed against a decision revoking prospectively the control order in force against him, and the appellant secretary of state appealed against a decision ordering that the control orders in force against the two controlees in that case were to be quashed. The court was required to consider whether the non-derogatory control orders in place were to be quashed with effect from the date on which they were made or whether they should be revoked. It was held that the making of a non-derogating control order was an administrative act of the secretary and if an order was legally flawed it attracted the usual consequence of a legally flawed administrative act, which was quashing. It then follows that if false imprisonment is established the secretary of state cannot escape liability in damages because of the strict liability of the tort and compensation will be payable to the former controlees.

The Court of Appeal in the case of R (MK) v Secretary of State for the Home Department [2010] EWCA Civ 980 has recently applied the approach in R v Governor and it was held that there was an unlawful detention for more than three weeks. It also held that damages should be assessed applying a global approach, having regard to the particular facts of the case, and should not be assessed mechanistically. An increased award of damages from £8,500 to a total of £17,500 which included £5,000 for aggravated damages was made.

Closed material procedure

In Bisher Al Rawi & 5 others (Appellants) [2010] EWCA Civ 48, the issue was whether it was open to the court to order a closed material procedure of a civil claim for damages in tort. Lord Neuberger MR held that it was not open to a court to order a closed material procedure and the principle that a litigant should be able to see and hear all the evidence determining his case was so fundamental that, in the absence of parliamentary authority, no judge should override it in relation to an ordinary civil claim. Although the court had inherent jurisdiction to develop common law, the course proposed by the respondents would involve not merely altering the rules of evidence as they applied to any proceedings, under the Civil Procedure Act 1997 schedule 1, but altering the fundamental principles of law; Scott v Scott [1913] AC 417 HL and R v Davis (Iain) [2008] UKHL 36 followed.

Although the extent of any disclosure by the court was a matter of discretion, the overriding objective required the court to deal with cases fairly and to ensure as far as possible that the parties were on equal footing.

This case clarifies the use of secret and sensitive evidence by public bodies and is a precedent that can be relied upon in police actions in respect to evidence contained in 'police intelligence' reports.

Malicious prosecution

Moulton v Chief Constable of the West Midlands [2010] EWCA Civ 524 is a recent case that follows on from the trend seen in the cases of Ministry of Justice v Scott [2009] EWCA Civ 1215 and AH v AB [2009] EWCA Civ 1092 in relation to complainants providing a false account to the police.

In this case the appellant (M) appealed against the dismissal of his claim for damages against the chief constable for malicious prosecution. The Court of Appeal held that the judge at first instance had been right to hold there had been reasonable and proper cause to commence the prosecution, which required a finding as to the subjective state of mind of the officer responsible and an objective consideration of the adequacy of the evidence, Hicks v Faulkner [1881-82] LR 8 QBD 167 QBD considered.

Although the police might have been wrong, they appeared honestly to have believed that the allegations were true and it therefore could not be said that the police were continuing the prosecution for an improper motive. It was unfortunate that the CPS did not make its decision more quickly; however, it could not be said that the police continued with the prosecution no longer having reasonable and proper cause. The case reinstates the difference between a malicious prosecution and one which is badly directly or incompetently conducted.

Information privacy

The case of C v (1) Chief Constable of Greater Manchester (2) Secretary of State for the Home Department [2010] EWHC 1601 has followed the Supreme Court decision of R (L) v Commissioner of the Metropolis [2009] UKSC 3.

C applied for judicial review of a decision of the chief constable to disclose information about him to a prospective employer in an enhanced criminal record certificate which contained details of an allegation made by his stepdaughter that C had sexually abused her between the ages of five and 15. C had sought a job as a welding lecturer at a further education college teaching children over the age of 16.

Langstaff J held that there was no presumption against disclosure, but nor was there a presumption in favour of disclosure. The question of proportionality necessitated close attention to detail by the decision maker and care had to be taken in weighing the risks of non-disclosure against those of disclosure. There had been no detailed consideration of the extent to which C would come into contact with children and there had been no detailed consideration of proportionality. The chief constable had taken into account the guidance in R (X) v Chief Constable of West Midlands [2004] EWCA Civ 1068 which was flawed and the decision to disclose could not stand. A decision that would inevitably have the consequence of C being unable to obtain work in his chosen profession was not proportionate to the risk from non-disclosure, which, though existing, was low. The case helpfully establishes that the correct approach is R (L) and clarifies the importance of proportionality.

In Chief Constable of Humberside and others (Appellants) v Information Commissioner (Respondent) & Secretary of State for the Home Department (Intervener) [2009] EWCA Civ 1079, the appellant chief constables appealed against decisions of the Information Tribunal that certain old convictions should be deleted from the Police National Computer. The police took the view that no convictions should be deleted except in exceptional circumstances, which should be narrowly construed as limited to such matters as convictions being established as wrongly obtained.

It was held that the tribunal had been wrong to find that the correct approach was that the police processed data for their 'core' purposes. Even if the narrower approach to purposes was correct, the tribunal was wrong to hold that retention of the information was a breach of the third and fifth principles of Data Protection Act 1998 schedule 1.

It was also held that the change in policy of 'weeding' in force at the time one of the individuals (S) was ensured that the reprimand would be removed from the Police National Computer after her 18th birthday had not become unfair. In the dissenting judgment of Carnwarth LJ on this point it was held that the court should evaluate the issue by reference only to the circumstances of the particular case.

The decision in these cases raises the issue of whether the police policy in the retention of minor convictions is proportionate in light of the case of C and whether the rights of the individual are being infringed.