Balancing police duties with the right to liberty

Everyone has a right to liberty, the right not to be detained against their will. There are exceptions to this right, the most commonly used being the right of the state to detain someone in connection with a crime. The police can arrest a person who they reasonably suspect has committed a criminal offence (where it is necessary to do so) and the courts are well used to dealing with disputes about the lawfulness of arrest.

There has for some time, however, been a grey area between those fairly clear cut rules.

The difficulty is, as a general rule, a false imprisonment claim can only be brought against the person or body actually detaining the person. Where a person has been arrested, charged and refused bail by the court (but not convicted of any crime) they will be detained by order of the court in a prison. The prison can rely on that court order as a defence against a claim that the person was being held unlawfully; the prison is not ‘choosing’ to detain that person.

However, where a state body (like the police or the Crown Prosecution Service) is responsible for someone’s detention, common sense, the rule of law (and the European Convention on Human Rights) demand that there is accountability where this power is misused.

Although the Human Rights Act (HRA) has been in force for over 14 years, the courts are still grappling with the application of these rights and their relationship to the common laws that protect our civil liberties.

Historically, the court has resisted imposing duties of care on the police or prosecution, towards those they are pursuing as well as those they are protecting. Under the Human Rights Act however, it is becoming increasingly clear that they cannot hide behind a blanket immunity from civil claims.

The vital duties upon the police and CPS to thoroughly and effectively investigate reports of serious crimes (particularly sexual assault or domestic violence cases) is clear. We have explored these duties in earlier blog posts. However a recent Court of Appeal case has directly addressed the duties of the police and prosecutors where a person is held in prison before trial.

In Zenati v Commissioner of Police of the Metropolis & Crown Prosecution Service [2015] EWCA Civ 80, the claimant had sought to sue the police and CPS for damages for false imprisonment and for breaches of his Article 5 rights. At a very early stage in the case, the police and CPS sought to have the claim struck out. The test at this stage is not whether the claimant has a good or bad claim, but whether the claim has reasonable grounds, (i.e. when the claimant’s case is taken at its highest, “it is bound to fail?”).

The claimant lost at the county court, but last month the Court of Appeal found in his favour, and in doing so established that there was a duty on the police and prosecutors to act with “special diligence” in cases where a person is being detained, and that where there is no longer reasonable suspicion that this person committed the offence, they must take steps to ensure that person is released.

Some may argue that this is tantamount to imposing a “duty of care” on the police and prosecutors for the people they investigate. This is an idea that the courts have explicitly rejected many times. In reality, both have always had duties and standards to uphold and the HRA makes it possible for individuals to take action when breaches of these duties affect their basic human rights.

The civil liberties team at Hodge Jones & Allen, along with our colleagues in criminal defence are regularly involved in litigating cases involving these issues. In fact, in 2012 we successfully settled a very similar claim (where our client had been arrested, charged and detained for 2 months over a ‘fake’ passport that was in fact genuine) and sued the prosecutor (in this case the Department for Work and Pensions (DWP)) under the Human Rights Act. Just as in Zenati, the defendants applied to strike out the claim. The High Court ruled that there was an arguable case and the DWP settled the claim soon after. Our client also obtained an apology and the removal of her biometric data (fingerprints and DNA) from the Police National Database.

In another of our cases, the police held onto evidence which exonerated our client for weeks and, when they did provide it to the CPS, did nothing to flag up its importance so it went overlooked there for weeks as well.

In another, our client remained in prison for two months before the police took crucial witness statements from people present at the time of the alleged crime and a further two months for these statements to make their way to his solicitor before the case was finally dropped. The client had never been in prison before.

Sometimes, these failings may be brought about by ill will or prejudice by individuals against those being prosecuted. Often, it will be for more benign reasons, such as someone going on leave without reviewing a case properly or having cover for their workload, but where a person’s liberty is at stake even a benign failing causes damage.

The court will always be reluctant to impose onerous duties on the police and the CPS, particularly when all public services are dealing with cuts and face even more.

Nonetheless, these duties do exist and those that have the power – either directly or indirectly – to detain us should be held to account where failings mean someone is detained without proper reason.

Human Rights Act challenges are not easy claims to bring, and must be brought within 1 year of the alleged breach (in exceptional circumstances the court will allow a longer period). However, the Court of Appeal judgment in Zenati brings some much-needed clarity to this area of law and should give some hope to those people who find themselves supposedly “lawfully” detained in prison, where investigative failings and inexplicable delays have kept them locked up.

One can’t help fear that internal pressures brought about by targets, combined with budget or personnel cuts within statue authorities tasked with investigating and prosecuting crimes, and pressures on criminal defence lawyers due to legal aid cuts, will make these situations more common.

It is wholly right to ensure the system as a whole is held to account at the highest level for the damage caused by these human rights breaches and allow innocent victims to achieve recompense for their suffering.