ForcedEntry

Forcing Entry

ForcedEntryVarious topics I have written about include reference to situations where the police may or may not have a legal authority to enter private buildings – if need be, by using reasonable force – in connection with mental health related incidents. 

I want to cover this again, pulling it all into one post so that there is a searchable reference tool to what we call “police powers of entry”.

Firstly, I want to dispel a myth that the police need a warrant from a Magistrate’s Court in order to be able to force their way into your house.  This is not always true, as there are various statutory authorities for the police to enter buildings without a warrant.

POLICE POWERS

The police have a right to force entry to buildings in about five different types of situation – I am generalizing slightly to keep this clear:

  • In order to arrest someone for what the law calls “an indictable offence”:
    - An indictable offence is one which can be tried in the Crown Court and includes things like theft, burglary and robbery up to an including violent offences like ABH and GBH; or sexual offences and murder.
    – So there is no authority to force entry to arrest someone for a “summary only” offence, which is handled in the Magistrate’s Court – things like drunkenness offences or minor traffic violations.
  • In order to save life and limb:
    - The officer must believe that the risk to life is serious and imminent: see the case of Syed v DPP [2010].
    – Officers once argued this justification for forcing entry in relation to an AWOL patient and the court ruled that there was insufficient justification to believe that the patient’s life really was in jeopardy.  This was in D’Souza v DPP [1992].
    – The court reminded us that where life was not imminently at risk, a warrant should have been obtained – see below.
  • To search a premises for evidence after arrest for an indictable offence:
    - It may be necessary to search someone’s home, for example, to see if there is evidence of the offence contained there.  This could include anything from stolen property, to clothing (which may assist in identification issues) or other forensic evidence like blood stained shoes.
  • To prevent or apprehend a breach of the peace:
    - This is what is known as a ‘common law’ power.  Where officers believe there is likely to be a breach of the peace or where they believe that there is a breach of the peace ongoing, they have a right to force entry in order to prevent it or stop it.
    Worth remembering, that the case of R v HOWELL [1982] defined a breach of the peace as requiring “an imminent risk of violence”.
  • Under the terms of what are commonly called “search warrants”:
    – This would include warrants issued under the Theft Act 1968, the Misuse of Drugs Act 1971, the Firearms Act 1968 and many others.

MENTAL HEALTH RELATED ENTRY TO PREMISES

mentalhealth_picThere are no specific powers for the police to force entry to a premises for mental health related issues, unless covered by one of the situations listed above.  Where a person with mental health problems is suspected of an offence or where they are actively attempting to take their own life, then officers would have powers to enter, as above.

But where officers or mental health professionals wish to enter a property where no criminal offences are being committed or attempted and where no-one’s life is at imminent risk, they must either have permission from the owner / occupier, or they must have a warrant from a Magistrate’s Court.

It may be worth noting: where two people live a house and one person consents to the police or mental health professionals entering the address, this makes entry lawful even if the other person objects to it.  So, for example, where someone has asked MH services to come to their home in order to assess or support their partner, the partner’s objection to the situation would not render their presence illegal and the police and mental health professionals would be acting “in accordance with their duties”.  << I use this terminology deliberately, because whilst most people realise it is a criminal offence to obstruct a police officer in the course of their duty, fewer people realise it is also an offence to obstruct an AMHP in the course of theirs.

MENTAL HEALTH ACT WARRANTS

There are two types of warrants which the Magistrates Court can issue which would then allow the police to enter a house without the permission of the owner / occupier.  Both are contained in section 135 of the Mental Health Act:

  • Section 135(1):
    - This is a warrant which can only be obtained by an Approved Mental Health Professional and it allows the police to do two things:
    – Enter the premises by force, if need be;
    – Remove the person in respect of whom the warrant is issued to a “Place of Safety” for assessment.
    – The police must be accompanied by an AMHP and a Doctor when they execute this warrant.
  • Section 135(2):
    - This warrant allows the police to enter by force any premises where a person is believed to be, if the person is liable to be detained or re-detained under the Mental Health Act.
    – For example, this includes:
    – Forcing entry in order to return someone to hospital who is AWOL under the Mental Health Act
    – Forcing entry in order to take someone to hospital in respect of whom an application for admission has been made, usually under section 2, 3 or 4 of the Mental Health Act.
    - NB:  this warrant can be obtained by the police on their own and executed by the police on their own, if need be.
    – Good practice would be for the police and mental health professionals to undertake these things jointly, but time does not always allow it.

USE OF FORCE INSIDE A PREMISES

The police have a statutory right to use reasonable force to prevent crime and arrest offenders – this is covered by section 3 of the Criminal Law Act 1967.  It means, for example, that if officers have been granted permission to enter a premises by a patient’s mother, but his father attempts to obstruct the AMHP from undertaking a proper MHA assessment, the police would be entitled to use reasonable force to prevent the father from obstructing the AMHP (a criminal offence), even if they were in the house with permission only from the patient’s mother.

Where the police are acting under the terms of a warrant issued by a Magistrate’s Court, it also follows that they are entitled to use reasonable force in order to ensure that the obligations within the warrant are fulfilled.  This would allow officers to use reasonable force to detain / convey a patient to a place of safety under a s135(1) warrant, for example.

The Mental Health Cop blog won the Mind 2012 Digital Media Award, in memory and in honour of Mark Hanson.
The Awards celebrate the “best portrayals of and reporting on mental health in the media.”

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7 thoughts on “Forcing Entry

  1. Another interesting post… unfortunately I have had the police searching for me a few times where I have “been at risk”, what I could never understand was on the worst of the occasions I had been to a burns unit at a hospital 40 miles away and was waiting a psych assessment, I was clearly very unwell, I “legged” it and what followed was a full on police search….all the time I was hiding in my house waiting for the “commotion” to die down, yes the police knocked (well hammered) on the door, searched externally and then proceeded with a helicopter search (not something Im proud of) ALL without gaining access to my property. Surely this would have cost more for the services than just gaining entry?? Yet on another instance they burst my door down and I wasn’t in the property! I sometimes just don’t understand the reasoning behind the actions!!

    1. We need to ‘believe’ your in the address AND are at significant risk of harm. That’s actually quite a high threshold if we hadn’t seen you go in and were hiding in there.

  2. A really useful summary of police powers. Just one point re Section135 (2) ,it also applies to people that are required to reside at a particular place under a Guardianship or a Community Treatment Order.

  3. Yes there are times police should enter a person’s residence when the person in question is at risk to harm themselves or others, BUT, when the police enter the home and find the person in question not at risk of harming themselves or others then the police should leave the same way they stormed in. Being the devils advocate, I always have to mention the what if’s, and that being mis-information from a caller to police about the mental health concerns of an individual. Are police going to remove the person in question from their home if there’s no signs that the person needs intervention? There are cases of citizens Acting in Bad Faith in order to discredit another person using mentl health detentions/admissions in order to gain control of their affairs, ie; money, estate, gaurdianship etc. Would you willingly go with police if you were capable and not in crisis.

    In any event, anytime a citizen is detained/arrested by police they should have a legal right to contact a lawyer, I say this not for the manic and incapable who may cause harm to self or others, I say it for those citizens who are capable and not at risk of harming self or others who are being vaccumed into the mental health system against their will for the very first time based on some ungrateful person Acting in Bad Faith.

    It’s not easy for police to do assessments, they are not psychiatrist, but police need to realize that by taking a pro-posed patient to ER for a forced mental health examination without allowing that person their requested call to lawyer or family, then that person may become agitated just because their rights are being violated, and their lives may be changed forever in a negative way.

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