Another post on some recent case-law that arises from an incident which was nothing to do with policing and mental health. However, upon learning of it strikes me as very relevant to the way in which officers use their Common Law power to prevent a breach of the Queen’s Peace. I submit that all officers who are likely to make or supervise arrests and the custody officers who detain people in the cells need to know of this case.
Cast your mind back to the Royal Wedding in 2011. As part of a large security operation on that day, officers from the Metropolitan Police detained several people whom they suspected were en route to protests where crime and disorder would result.
Several people were arrested to prevent a breach of the peace and taken to custody where they were held until the likelihood was over. The question that arises in the Appeal Court, is whether or not the detention in police custody amounts to ‘internment’ and violates Article 5 of the European Convention. But let’s start with the basics of what a Breach of the Peace actually is, for those who don’t know.
BREACH OF THE PEACE
Referred to as a Common Law complaint, a Breach of the Peace (BoP) can trace its legal antecedents back to the Justices of the Peace Act 1361. This is the oldest Act of Parliament I’ve ever come across in policing. Police officers and all citizens are entitled to detain those whom they reasonably anticipate will breach the Queen’s Peace and bring them before a Magistrate to be “bound over”. The court can require the person to enter into recognizance to be of good behaviour, lest an agreed sum of money be forfeit. So you may appear in court and be told, “You will be bound over for six months in the sum of £500” and you only ever pay that sum if you are brought again before the court.
Breach of the Peace is not an offence, strictly speaking, it is a complaint. Where officers arrested individuals for this, they may do so as soon as they imminently anticipate a breach of the peace or having come across a breach in progress, may arrest to apprehend that breach. The person is then removed to police custody. If it is still anticipated that a Breach of the Peace would occur when a Magistrate becomes available, the person must be brought before the Justices for that area to be bound over. If there are grounds for arguing after arrest but before appearing in court that the anticipated breach is no longer feared, or if the breach that occured is not likely to recur, then the person may be released without being brought to court.
THE CASE OF HICKS AND OTHERS
Several people then brought civil action against the Metropolitan Police (2012) in a judicial review. This original action questioned the legality, proportionality of arrests, stop / searches, etc..
The original judicial review led to a long, detailed judgment but the conclusion was that all of those initial claims were dismissed.
This post arises from the Appeal of some of the original litigants, in which particular parts of that judgment were questioned. Mr Brian HICKS and others (2014) argued in appeal that their detention in Metropolitan Police custody amounted to a deprivation of liberty, contravening article 5 of the European Convention. Obviously, the ECHR is violated if the state deprives someone of their liberty in circumstances where And here’s why —
- Everyone has the right to liberty and security of person — no one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
- a) the lawful detention of a person after conviction by a competent court;
- b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
- c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
- d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
- e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
- f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
I draw your attention to A5(1)(b) and A5(1)(c) which are pertinent to the appeal. I also have to confuse you by pointing out that whilst a Breach of the Peace is not, strictly speaking, an “offence” under British Law, it is regarded as an “offence” for the purposes of European Law! Helpful, eh?!
(Also note A5(1)(e) which is how various provisions of the Mental Health Act are compliant with the European Convention.)
After considering various cases from European Law and other domestic legal issues, the court ended up focussing upon A5(1)(c) as the crux of the matter. The detention of Mr HICKS and others would be lawful if it complied with that provision, it would if it didn’t!
Simple, isn’t it?!
On the face of it, how could the Metropolitan Police have complied with this? They arrested the protestors and released them only a few hours later, the Wedding having finished. So it all comes down to the intention behind the arrest. The police submitted that the protestors were released as soon as they were satisfied that no breach of the peace was likely to occur. This point in time happened before they get the protestors before the first available court. Had the breach of the peace still been anticipated at the point where the Justices sat, then the protestors would have been brought before the court to be bound over.
It was therefore their intention at the point of arrest to bring protestors before the court if they still anticipated a breach. That fear having receded, they were released. The court’s ruling was that the officers acted “for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence.”
The appeals that the detentions in custody violated Article 5 were dismissed.
POLICING AND MENTAL HEALTH
So it follows from there, that the more generalised point about the implication for policing mental health related incidents, especially is private premises, is a brief one. We are all familiar with the difficulties police officers can face in private dwellings. Without an ability to use s136 MHA and with no other legal provision allowing unilateral action oriented around a vulnerable person’s wellbeing, officers can feel hamstrung, where they feel they must act. In very rare cases, the Mental Capacity Act may apply, but as I keep saying again and again(!), the extent to which this can be relied upon is really over-estimated by paramedics and police officers alike and if people looked hard enough, they would find the circumstances in the case of Sessey are far from being a one-off incident. (Yes, I have flagged it up, where I’ve seen or learned of it.)
So where officers feel they have to take some immediate action to safeguard someone, they fall back on some traditional options –
- They arrest someone for a substantive criminal offence – see the recent judgment in Webley v St George’s (2014) for an example of that.
- Officers have been known to arrest for a breach of the peace and once a person is outside the premises, de-arrest them(!) and then detain them under the Mental Health Act – we know this is unlawful because of Seal v Chief Constable of South Wales Police.
- Officers arrest to prevent a breach of the peace with a view to securing Mental Health Act assessment in custody – this practice is where this judgment in Hicks becomes very interesting indeed for its wider implications!
We now know from the (civil) Court of Appeal that it must be in the mind of the arresting officer to bring the person “before the competent legal authority” in order to survive a challenge against Article 5(1)(c). Arresting a person to prevent a breach of the peace without any intention at all of placing that person before a court, will violate this European Convention. So it appears that officers need to ask themselves when making any arrest for a breach of the peace and certainly it might be regarded as the “Ways and Means Act of 1829” – whether they would be trying to place that person before a court or whether, in reality, it is a proxy arrest to deal with a situation the Mental Health Act doesn’t cater for?
This also has implications for AMHPs when planning Mental Health Act assessments in private premises and considering, firstly, whether or not to request police support; and secondly, whether or not to secure a warrant under s135(1) MHA. Even before this case, AMHPs would clearly need to have in mind what police powers might be needed. For example, if they were attending because the risk of crime and disorder at the address came from a third-party, the police may need nothing more than knowledge of the criminal law: specifically, the rights of AMHPs to enter premises and the criminal offence of obstruction of the AMHP under s129 MHA. If the issues are that a patient is likely to be resistant and aggressive and prevent a meaningful assessment occurring, then reliance upon police powers to prevent a breach of the peace may now be misplaced.
Previously, where an AMHP had not obtained a s135(1) warrant – for example, because access was possible and a view was taken that rendered an application unnecessary – it has occasionally been relied upon (consciously or unconsciously) that the police will detain patients to prevent any anticipated BoP or criminal offence, and that Mental Health Act assessment can conclude in the cells if it had been prevented. I submit that such action, in the absence of an intention at the point of arrest to place the person before a Magistrate may well be questioned as a violation of article 5 in the context of this ruling. If any one disagrees with me on this, I’d love you to leave a comment saying why.
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