Bournemouth and

Poole College

Sixth Form Law

Bournemouth and

 Poole College

Text Only

Privacy & cookies

Change Text Size

Sixthform logo

Cases - Police powers
Sixthform logo

Home | Dictionary | Past papers | Cases | Modules | Exam dates  | National Exam Results | What's new?

Google logo  

 

 

Albert v Lavin [1981] HL

 

 

Whole case here

^[Police powers - no detention without arrest, exception includes Breach of the Peace]

D, (Albert) tried to " jump the queue " at a bus stop in Brentford. Lavin, a police constable was at the head of the queue obstructed Albert from boarding the bus out of turn.  Lavin told D he was a PC. D disbelieved him and struck him five or six blows in the stomach. This constituted the assault on a constable in the execution of his duty for which Lavin arrested him and of which he was convicted by the magistrates.

 

Held:    There is a well established principle that to detain a man against his will without arresting him is an unlawful act and a serious interference with a citizen's liberty.  The sole exception to that well-established principle, is that every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed, has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will. At common law this is not only the right of every citizen, it is also his duty.

 

Guilty

Alderson v Booth [1969] DC

In Alderson v Booth [1969] DC it was established that it has been made clear to a person that he is under arrest.

 

Clear words are necessary to bring home to defendant that under compulsion. Simple words such as "I arrest you" are preferable to a Constable saying "I shall have to ask you to come to the police station."
 

False imprisonment is the intentional or reckless restraint of someone’s freedom of movement from a particular place.

 

Argent, R v [1997] CA

 

Whole case here

 

 

 

 

D stabbed V (who was unknown to him) to death outside a nightclub he received advice from his solicitor and replied "no comment" to a series of questions put to him by the officer.

 

Held:  The court must take into account the defendant's characteristics, such as age, health and mental capacity, and legal advice as relevant circumstances.  The fact that it was unreasonable for D not to have mentioned included the fact that he had had no quarrel with the victim in the club; that he and his wife had left the club before the rest of the party; that he had not at any stage of the evening carried a knife; that he had not been involved in any altercation in the street in which V was stabbed; that he saw and was a witness of no such altercation.

 

Guilty

Attorney General's Reference No. 3 of 1999 (2000) HL

 

 

Whole case here

 

D raped a 66 year old, swabs were taken from the victim and a DNA profile placed on the national DNA database.  D was arrested a year later for burglary.

 

A DNA sample was taken from him but when he was acquitted the sample DNA sample should have been destroyed. It was not and in the DNA sample was matched with the profile taken from the victim of an earlier rape.

 

The Court of Appeal held that the judge had no discretion to allow the proceedings against the defendant based on DNA evidence, which should have been destroyed.

 

Held: A judge had discretion to allow a prosecution to proceed in these circumstances.

Respect for the privacy of defendants is not the only value at stake, that the purpose of the criminal law is to protect citizens from harm and that there must be fairness to all, to the victim and to the public as well as to the defendant

 

Not guilty but would be now

Brown v Stott [2000] PC

 

Whole case here

 

B was suspected of having stolen a bottle of gin from a superstore. The police judged her to be the worse for drink, and to have arrived by car.  Using their road traffic powers the police required B to say who had been driving her car at the time it would have been driven to the store car park.

 

B stated that she had been the driver of the car at the relevant time. The police then administered a breath test which proved positive. B was charged with drink driving.

B contended that the use in evidence of the admission would infringe her right to a fair hearing.   

 

Held: The Privy Council did not think the admission infringed her rights.

 

Lord Bingham CJ that the high incidence of death and injury on the roads caused by the misuse of motor vehicles was a serious social problem and there was a clear public interest in the enforcement of road traffic legislation … the Act allowed for the putting of one simple question which was not incompatible with the defendant's rights

 

Users of motor cars know they are subject to a regulatory regime; that regime is imposed because cars have the potential to cause grave injury.

 

Guilty

Condron v United Kingdom [2000] ECtHR

 

Whole case here

 

DD were drug addicts allegedly dealing in heroin items that had been seen to be exchanged.  When interviewed by police their solicitor thought they were experiencing withdrawal symptoms, the doctor did not. They remained silent on their solicitor’s advice.

Held: Although in
Murray v United Kingdom [1996] the right to silence was held not to be an absolute right the right to silence lay at the heart of the notion of a fair procedure.

 

The right to silence cannot be the basis of a conviction solely or mainly on the accused's silence itself.

 

DD had explained at their trial why certain items were exchanged between them and their co-accused. Although the trial judge drew the jury's attention to the applicants' explanation for their silence, the Court considered that he did so in terms which left the jury at liberty to draw an adverse inference notwithstanding that it might have been satisfied as to the plausibility of the explanation.

 

Particular caution was required before a domestic court could invoke an accused's silence against him.

 

Not guilty

Following Condron, the Judicial Studies Board issued a form of words called a “standard direction” for judges to give to juries.  What happens is, if the issue is raised during the trial, the judge in his summing up has to clarify the facts and the law for the jury; he does this by using a “standard direction”.

Dallinson v Caffrey (1965)

Lord Diplock when discussing "reasonable grounds" described the test as being whether "a reasonable man assumed to know the law and possessed of the information which in fact was possessed by the defendant would believe that there were reasonable grounds." (IOLIS)

 

Dispersal Zones

 

R (on the application of W) v Metropolitan Police Comr (Secretary of State for the Home Department, interested party)
[2006] CA

 

Whole case here.

 

In W v MPC [2006] CA, it was held that police can force children home if they are found within dispersal zones.  Dispersal zones are used to tackle unruly behaviour.  The Court of Appeal reversed a decision of the High Court that had ruled that forcibly 'removing' children home breached their human rights.


Inside these areas, after
9pm, children under 16 - without an adult - can be 'removed'; forced home, to protect them from anti-social behaviour or to prevent them from committing anti-social behaviour. 

 

However, The CoA said that can only happen if the child is at risk from, or involved in, anti-social behaviour.

 

The legislation is Sec 30 Anti-social Behaviour Act 2003.

 

In this case "W" was never 'removed', only warned by a CSO that he was in a dispersal area (he lived in the dispersal area and went to the shops), so although this was a hypothetical question the CofA did answer it to clear up a legal limbo left by the High Court.

 

King v Gardner (1979) DC

A constable received a radio message that two males, a female and a dog were loitering in a London street. They went to investigate at the area in question and saw the defendant with a girl and a dog. They stopped and detained the defendant who was carrying a bag. It was held that the radio message could not give grounds for suspicion.

 

The question whether the officer had acted reasonably was not merely a subjective question, i.e. what was in his mind, but it had to be looked at in a general objective context, namely, the situation as a whole.

 

Lodwick v Sanders [1985] DC

A police officer is acting in the execution of his duty if, having stopped a vehicle pursuant to the above section, he detains it pending further inquiries having reasonably formed the suspicion that it may have been stolen.

 

Malone v United Kingdom (1985) ECtHR

 

Whole case here

The Malone Case was heard in the European Court of Human Rights, and the resounding judgment against the UK led to the Interception of Communication Act 1985.

 

Mr Malone, an antiques dealer, was prosecuted for offences relating to dishonest handling of stolen goods. During the trial it emerged that the applicant's telephone had been tapped by the police acting on the authority of a warrant issued by the Home Secretary. Following his acquittal on the criminal charges, the applicant brought civil proceedings seeking to establish that the tapping of his telephone had been unlawful.

 

Held:  UK law did not provide sufficient protections for the citizen against arbitrary interference, the minimum degree of legal protection to which citizens were entitled under the rule of law was lacking. The system of intercepting communications was not "in accordance with the law".

 

Malone won

Gouriet v Union of Post Office Workers [1977] HL

 

No man is above the law

 

 


Whole case
here

Mr Gouriet wanted to stop the Union of Post Office Workers boycotting post between the UK and South Africa in protest against apartheid

 

The Attorney General Sam Silkin refused to consent to Mr Gouriet's application.  Silkin argued that his decision was not subject to review by the courts.

 

In the Court of Appeal  Lord Denning said of Silkin's position, "Be you ever so high, the law is above you", and ruled that the Attorney General's decision was reviewable by the courts.

Held: In this case the Attorney General was accountable to the public for the exercise of his public interest powers through Parliament and not through the courts.

 

Silkin won

Osman v Ferguson (1993) CA

[Tort – negligence - duty of care – no duty situations - public policy – breach – no duty of police in certain situations]
D the police, failed to stop a man shooting and killing C’s husband.

 

The man a teacher formed an unhealthy attachment with C’s 14-year-old son and began to harass him and his family.  It was known he might do something criminally insane.

Held: C had been exposed to a risk over and above that of the public there was an arguable case that there was a very close degree of proximity amounting to a special relationship between the C’s family and the investigating police officers.

 

However, following Hill, it would be against public policy to impose such a duty as it would not promote the observance of a higher standard of care by the police and would result in the significant diversion of police resources from the investigation and suppression of crime.

 

C lost

C took the case to the ECtHR

Osman v UK [1999] ECtHR

 

Whole case here

"Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention."

R (Laporte) v Chief Constable of Gloucestershire Constabulary (2006) HL

[Police powers – detention - breach of the peace - police not entitled to send coach containing protesters back to London]
D, the police, stopped and searched two coaches, on board one of which was the claimant (Jane Laport). The coaches were travelling to a US air base to demonstrate against the war in
Iraq. The police said they feared a breach of the peace would occur at the destination. Therefore, they ordered the coaches to return to London with a police escort.

Held: Police acted unlawfully since no such breach was about to occur.


The common law power to prevent a breach of the peace is enjoyed by every constable and citizen. It is subject to a duty to seek to prevent by arrest or other action short of arrest any breach of the peace occurring in his presence, or any breach of the peace which, having occurred, was likely to be renewed, or which was about to occur. The leading authority being Albert v Lavin [1982] HL.
 

The Court acknowledged that there was no absolute requirement that a breach of the peace had to be ‘imminent’, although imminence was relevant to what was reasonable in the circumstances.

 

Where a reasonable apprehension of an imminent breach of the peace existed then the preventive action taken must be reasonable or proportionate. It was not reasonable for the police to believe that there would be disorder once the coaches reached RAF Fairford. Extensive precautions had been put in place there.
 

Even if, some of those on board the coaches reasonably appeared to be about to breach the peace, there was no reasonable ground to infer that they all were, or that the claimant was.
 

The approach of the English common law to freedom of expression and assembly was to permit that which was not prohibited. The Human Rights Act 1998, represented a constitutional shift, but the right to freedom of expression and peaceful assembly could be restricted if the demonstration was unauthorised or unlawful or if conduct was such as actually to disturb public order.

Although acknowledging policing such circumstances was problematic, they said that if the public interest required that the power of the police to control demonstrations of the present kind should be extended, any such extension should be effected by legislative enactment and not judicial decision.

C won

R v Beckles [2004] CA

 

Whole case here

 

D and others robbed the victim at a flat, prevented him  from leaving, and finally threw him out of the window where he sustained injuries to his spinal cord resulting in paraplegia.

 

When arrested the defendant said that the victim "wasn't pushed, he jumped" but, after seeing his solicitor, refused to answer any questions when interviewed.

 

The European Court of Human Rights (ECtHR) held in 2002 that the trial judge had not told the jury to consider whether relying on the solicitor’s advice was reasonable or genuine. This had violated article 6. 

 

The case arrived at the Court of Appeal on this occasion by a reference by the Criminal Cases Review Commission.

 

Held:  A jury should not draw such an inference if they considered that the defendant genuinely and reasonably relied on the advice of his solicitor to remain silent.

 

Were the facts relied on at the trial facts which the defendant could reasonably have been expected to mention at interview? If they were not that was the end of the matter.

 

If the jury considered that the defendant genuinely relied on the advice but they concluded he was acting unreasonably they could draw an adverse inference.

 

Retrial ordered.

R v Betts and Hall [2001] CA

 

Whole case here

 

The defendants were alleged to have caused grievous bodily harm with intent.

 

H remained silent having received advice of a solicitor.

The solicitor gave that advice because the police had not told H about material in their possession.

Similarly, B declined to answer any further questions other than to deny assault.

 

The jury were wrongly allowed to draw any adverse inferences from the defendants’ failure to answer questions in the police station.

 

Held: The jury should not have drawn inferences against the defendants simply because the solicitor told to them to remain silent.

 

They had to be sure that the defendant had no explanation to offer or none that he believed would stand up to questioning or investigating.

 

Not guilty

Brutus v Cozens [1972] HL

Whole case here

 

Howell, R v [1982] CA

Watkins LJ

"We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. "

Howell, R v [2003] CA

 

Whole case here

 

D stabbed his friend who sustained life-threatening injuries.  D claimed self-defence as the victim was trying to rob him.

He made a ‘no comment’ interview on the advice of his solicitor. The solicitor had given the advice because the victim’s statement had not been made available.

 

The case was referred to the Court of Appeal by the Criminal Cases Review Commission.

 

Held:  A defendant’s silence in interview had to weigh in the balance against the clear public interest in an account being given by the suspect to the police. Solicitors should bear that in mind.

 

In this case there had been no good reason for the defendant’s silence.

Section 34 says a jury may draw proper inferences from a failure "to mention any fact relied on in his defence ... being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention ...".

 

Now, the police interview and the trial are part of a continuous process during which the public interest requires reasonable disclosure by a suspected person of what he has to say when faced with a set of facts which accuse him.  This principle is thwarted if currency is given to the belief that if a suspect remains silent on legal advice he may systematically avoid adverse comment at his trial.

 

The absence of a written statement from the complainant is not a good enough reason for silence, and it does not become good reason merely because a solicitor has so advised.

 

Reasons not good enough:

That the complainant may not pursue his complaint,

A belief by the solicitor that the suspect will be charged whatever he says.

 

Reasons that might be good enough:

The suspect's ill-health, mental disability; confusion; intoxication; shock, or his inability genuinely to recollect events without reference to documents which are not to hand

 

The reasons must always be soundly based objective reasons.

 

Guilty

Knight, R v [2003] CA

 

 

Philip Knight took the 10 year-old daughter of a friend for a walk in some woods. There, it was alleged, he indecently assaulted her. She claimed, for example, that he put his hand on her stomach whilst his other hand was down his own trousers. He was arrested and interviewed by police. 

 

The duty solicitor advised him not to answer police questions. He stated that he might get confused when answering questions and so gave the police a pre-prepared statement and he did not deviate from the statement at trial.

 

Held: No inferences could be drawn.  R v Howell followed.

 

Not guilty

Rankine, R v [1986] CA

Elliston Rankine a drug dealer supplied cannabis to about 10 people (and had cocaine in his possession).   Two police officers watched him for about an hour, from a nearby house, selling cannabis outside a shop. The police refused to identify the observation point because they would not be able to use it again and the occupier might be put at risk.

 

The trial judge gave to the police officers the complete discretion to answer questions if they thought it would embarrass their sources.

 

Held: It is in the public interest that police cannot be required to disclose the sources of their information – fore example the identification of premises used for surveillance - in order to retain their utility and to protect their owners or occupiers from possible reprisals.  

 

This rule is subject to a duty to identify the premises in order to avoid a miscarriage of justice.

 

Guilty

Roble, R v [1997] CA

 

Whole case here

 

D had knifed the victim (who was known to him), and was guilty of wounding with intent. Under caution, the defendant made a “no comment” statement after taking lengthy legal advice. He a refugee from Somalia but did not need an interpreter.

 

At his trial inferences were drawn because it was unreasonable for the defendant not to have mentioned that he was acting in self-defence as the victim had been the aggressor.

 

Held: It was open to the jury to draw inferences both generally and in relation to the knife. In any event there was overwhelming evidence against this appellant.        

 

Guilty

Shillibier, R v (2006) CA

 

Whole case here

A police investigation policy consisting of significant witnesses, TIE category (Trace, Interview, Eliminate), and suspects, was perfectly lawful.

 

Held: The obtaining of a search warrant did not automatically mean that a person fell to be treated as a suspect.

"We do not see the TIE policy (which we understand to be a national policy) as cutting across or undermining that essential distinction. As explained in evidence to Aikens J, it applies to persons who are not at that stage regarded as suspects.

 

"The adoption of those categories does not affect the requirement under the Code to caution suspects or the absence of a requirement to caution non-suspects."

"Suspects" [are] interviewed by officers trained in a particular method of interviewing which is given the acronym "PEACE".

 

S. and Michael Marper v. the United Kingdom (Grand Chamber) (nos. 30562/04 and 30566/04)

To be heard in February 2008.  DNA database.

Willoughby, R v  (1998) CA

In R v Willoughby 1998, the Court of Appeal upheld a life sentence against a repeat sex offender for falsely imprisoning an 18 year old student at Southampton University in a toilet cubicle.  At knifepoint, he made her perform acts of gross indecency.

 

The imprisonment lasted only 20 minutes but the fundamental reason for the appellant's conduct was that he falsely imprisoned her for non-consensual sex.

Rice v Connolly (1966) CA

 

Whole case here

 

In Rice v Connolly (1966) CA it was held that while every citizen had a moral or social duty to assist the police, there was no such legal duty, and the defendant in refusing to answer the police constable's questions (as opposed to telling a lie) or to accompany him to the police box was within his rights at common law.

 

Shaaban Bin Hussein v Chong Fook Kam [1970] PC

Reasonable suspicion is less than prima facie proof. Per Lord Devlin. In Malaysia, suspects were detained following a fatal road traffic accident, and later released for lack of evidence, only part of the detention was held to be unreasonable.

 

Singh, R (on the application of) v Chief Constable of West Midlands Police [2006] CA

 

Whole case here

 

This additional power was used when police attended at a theatre where a play in which a Sikh priest was shown committing sexual acts in the temple had caused protestors to become threatening and were causing other members of the public harassment alarm or distress.  The police ordered the protestors to disperse and arrested the defendant who refused to leave.  He was convicted under the Anti-social Behaviour Act 2003, his appeal against conviction failed.

 

Williamson v Chief Constable of the West Midlands Police [2003]

A breach of the peace is not a criminal offence within the context of PACE; accordingly, the provisions of PACE do not apply to arrest and detention for causing a breach of the peace

Woolmington v DPP [1935] HL

D aged 21 accidentally shot his wife V aged 17.  Following quarrels V went back to live with her mother. In order to persuade her to return he took a shotgun to show her and threaten her that he would commit suicide.  He tied the sawn off shotgun over his shoulder under his coat, as he showed it to her it went off accidentally killing V.

 

The issue to be decided in this case was whether Foster's Crown Law (1762) was correct where it said that were a death occurred it is to be presumed to be murder unless the defendant proves otherwise. 

 

Held:  Murder cases were reported since at least Mackalley's case in 1611, but there was no authority, for Foster's statement.  It was found in a text book and often repeated by other writers and followed by judges, but it was wrong. 

 

Viscount Sankey LC:

"Throughout the web of the English Criminal Law [there is] one golden threadthe prosecution [must] prove the prisoner's guilt … If there is a reasonable doubt … the prisoner is entitled to an acquittal.”

 

Not guilty

Also here

 

© 2000-2008 M Souper  Copyright reserved | disclaimer

 Law Weblog | Contact us |

Please visit the FREE Hunger Site