Albert v Lavin  HL
^[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
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
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.
Alderson v Booth
In Alderson v
Booth  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.
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 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.
Reference No. 3 of 1999
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.
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
Not guilty but would
Brown v Stott
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
B contended that the
use in evidence of the admission would infringe her right to a fair
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.
Condron v United Kingdom
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
Held: Although in
Murray v United Kingdom
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
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
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
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)
R (on the application of W) v Metropolitan Police
Comr (Secretary of State for the Home Department, interested party)
In W v MPC  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
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.
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
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
The Malone Case
heard in the European Court of Human Rights, and the resounding judgment
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.
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".
Union of Post Office
Workers  HL
No man is above the law
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
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.
Ferguson (1993) CA
[Tort – negligence - duty of care – no duty situations -
public policy – breach – no duty of police in certain situations]
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.
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 took the case to the ECtHR
Osman v UK
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
[Police powers – detention - breach of the peace - police
not entitled to send coach containing protesters back to
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
The police said they feared a breach of the peace would occur at the
destination. Therefore, they ordered the coaches to return to
with a police escort.
Held: Police acted unlawfully since no such breach was about to
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
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
R v Beckles
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.
arrested the defendant said that the victim "wasn't pushed, he jumped"
but, after seeing his solicitor, refused to answer any questions when
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
at the Court of Appeal on this occasion by a reference by the
Criminal Cases Review
not draw such an inference if they considered that the defendant genuinely
and reasonably relied on the advice of his solicitor to remain silent.
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.
jury considered that the defendant genuinely relied on the advice but they
concluded he was acting unreasonably they could draw an adverse inference.
R v Betts and Hall
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
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.
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.
Brutus v Cozens  HL
"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
Howell, R v
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.
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
Reasons not good
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
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.
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.
No inferences could be drawn. R v Howell followed.
Rankine, R v  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.
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
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
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
Shillibier, R v
A police investigation policy consisting of significant
witnesses, TIE category (Trace, Interview, Eliminate), and suspects, was
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
Willoughby, R v
In R v
the Court of
Appeal upheld a life sentence against a repeat sex offender for falsely
imprisoning an 18 year old student at
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
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
Reasonable suspicion is less than prima facie proof. Per Lord
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
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
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
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.
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
Viscount Sankey LC:
"Throughout the web
of the English Criminal Law [there is] one golden thread … the
prosecution [must] prove the prisoner's guilt … If there is a
reasonable doubt … the prisoner is entitled to an acquittal.”