Hugely important in practice are the numerous and varied statutory powers conferred by Parliament. In addition, there also exist powers at common law. A defendant may be able to rely on such a power to protect them from what would otherwise be valid claims for assault, battery and/or false imprisonment. For our purposes, the most important of these powers are:
S 1 of the Police and Criminal Evidence Act 1984 (PACE) gives the police limited powers to stop and search a person for stolen or certain other articles which the officer has reasonable grounds for suspecting she will find. More extensive search powers are available to the police under PACE once a person has been arrested (s 32) and once an arrested person has been detained at a police station: see ss 54, 54A and 55.
Note that there are numerous other statutory stop and search powers. The most significant include:
S 1 of the Magistrates’ Courts Act 1980 provides that a magistrate may issue a warrant to arrest a person and bring him before a magistrates’ court where the person has, or is suspected of having, committed an indictable offence or an offence punishable with imprisonment or where the person’s address is not sufficiently established for a summons to be served on him. S 6 of the Constables Protection Act 1750 gives a police officer a defence to any claim brought against him for any act done under a warrant issued by a magistrate.
S 24 of PACE gives the police very important powers to arrest an individual without obtaining a warrant from a magistrate (a so-called summary arrest).
S 24(1) permits a police constable to arrest without a warrant anyone who is (i) about to commit an offence or whom she has reasonable grounds for suspecting is about to commit an offence (ii) is in the act of committing an offence or whom she has reasonable grounds for suspecting is committing an offence.
Under s 24(2) a constable who has reasonable grounds for suspecting that an offence has been committed, may arrest without a warrant anyone whom she has reasonable grounds to suspect of being guilty of it.
Where an offence has been committed, a constable may arrest without a warrant anyone who is guilty of the offence or anyone whom she has reasonable grounds to suspect of being guilty of it (s 24(3)).
Crucially, s 24(4) provides that an officer may only make an arrest under s 24(1), (2) or (3) if she has reasonable grounds for believing that it is necessary to arrest the person for one or more of the reasons set out in s 24(5). These include:
In Hayes v Chief Constable of Merseyside Police [2011] EWCA Civ 911 at [40] Hughes LJ stated that there are two requirements for an arrest under s 24 to be lawful:
T complained to the police that C had assaulted him in the street and threatened him with further and greater violence. T told the police that he had previously bought drugs from C and that C claimed that T owed him money. A police officer managed to speak to C by phone and told C that he needed to meet him. C agreed to meet the officer at Lime Street train station straight away. At the train station C was immediately arrested and taken to a police station. An officer then phoned T to tell him of the arrest. T told the officer that he no longer wished to pursue his complaint against C. The officer passed this information on to the custody sergeant before going to meet T in person. At that meeting T confirmed that he would not assist the police in their investigation. The officer returned to the police station and C was released without charge.
C sued D for wrongful arrest and detention. The judge dismissed the claim and the Court of Appeal dismissed C’s appeal. As for arrest, both conditions for a lawful arrest under PACE, s 24 were satisfied. As for detention, the custody officer clearly had reasonable grounds for continuing C’s detention for the relatively short time it took for the officer to get confirmation from T in person that no longer wished to pursue the complaint.
In the early hours one morning, during a drug and alcohol fuelled party at the home of Michael Parker (aka Michael Barrymore), one of the guests (L) was found unconscious and not breathing in the swimming pool. L died in hospital a few hours later. A post mortem revealed that L had suffered severe anal injuries. Following an investigation the police decided to arrest Parker and two other guests on suspicion of L’s murder and rape. It was decided that Parker would be arrested by DC Jenkins, a member of the investigating team. At the time of the planned arrest, DC Jenkins was stuck in traffic on her way to the scene. As a result, PC Cootes, a member of the surveillance team, was instructed to arrest P on suspicion of L’s murder and rape and was told the date on which the alleged offences took place. P was then arrested by PC Cootes but subsequently released without charge. P brought an action for false imprisonment in which claimed damages for very substantial financial losses. D admitted that P’s arrest had been unlawful as PC Cootes had not personally had reasonable grounds for suspecting that P was guilty of the offences.
Sir Brian Leveson P (at [15]) summarised the relevant principles as follows:
‘The bar for reasonable cause to suspect set out in section 24(2) of the 1984 Act is a low one. It is lower than a prima facie case and far less than the evidence required to convict . . . Further, prima facie proof consists of admissible evidence, while suspicion may take account of matters that could not be put in evidence . . . Suspicion may be based on assertions that turn out to be wrong . . . The factors in the mind of the arresting officer fall to be considered cumulatively . . .’
C, a window cleaner, brought a claim against D for false imprisonment. The police received a complaint from one of C’s customers, X, about his aggressive behaviour. On one occasion, X said, he had kicked her front door open and on another she received a threatening and abusive phone call from him. X also told police that C had sent her a text message and a voicemail but the police found both of these to be calm, courteous and professional. X was visited by D’s officers who complied a report. Subsequently the decision was taken to arrest C.
D’s officers went to C’s house to arrest him but he was not there. Hearing of the police’s visit, C voluntarily went to the police station later the same day. After C had been waiting for five minutes, PC Lockyer came and arrested him. In his own evidence, PC Lockyer said that he was asked by the desk sergeant to arrest a person in the front office. Ten minutes later, having read the report, Lockyer arrested C for malicious communications.
The County Court judge dismissed C’s claim. The County Court judge found that PC Lockyer had had two reasons for arresting C: to enable a prompt and effective investigation and to protect X. The judge also found that the arrest had been necessary for two additional factors even though neither had been supported by PC Lockyer’s evidence: that C might terminate a voluntary interview at any time and that C might send ‘associates’ to intimidate X.
Cotter J allowed C’s appeal. Cotter J held that the judge had been wrong to take account of the additional factors as neither had formed part of PC Lockyer’s reasoning. Further, Cotter J held, the actual reasons which PC Lockyer had relied on were not objectively sufficient as reasonable grounds for the necessity of an arrest. Cotter J held that PC Lockyer should have given more consideration than he did as to whether or not a voluntary interview would have sufficed given that C was there at the station voluntarily. Further, while C was at the station he posed no threat to X.
Under s 24A(1) someone other than a police constable may arrest without a warrant anyone who is in the act of committing an indictable offence or whom she has reasonable grounds for suspecting to be committing an indictable offence. Indictable offences are those which may be tried in the Crown Court (ie the more serious offences).
Under s 24A(2) where an indictable offence has been committed, someone other than a police constable may arrest without a warrant anyone (i) who has committed that offence or (ii) whom she has reasonable grounds for suspecting to be guilty of it.
In similar vein to the position under s 24, the powers of arrest under s 24A(1) and (2) may only be exercised where:
S 28 provides (broadly) that for an arrest to be lawful, the person arrested must be informed at the time of, or as soon as reasonably practicable after, his arrest (i) that he is under arrest and (ii) of the ground for his arrest.
‘It is not of course to be expected that a police constable in the heat of an emergency, or while in hot pursuit of a suspected criminal, should always have in mind specific statutory provisions, or that he should mentally identify specific offences with technicality or precision. He must, in my judgment, reasonably suspect the existence of facts amounting to an arrestable offence of a kind which he has in mind.’ (Bingham LJ at 197).
T had been told that he was being arrested for burglary. The court held that the arrest had been unlawful. Before arresting T, the arresting officer could have obtained details as to when and where the burglary had occurred and he should have given T these details when arresting him.
Police responded to an allegation of domestic violence. On arriving at the house, L told the officers that W had punched her. W who was standing in the doorway appeared aggressive and confrontational. Positioning himself in front of W so as to prevent W from leaving the premises, PC Adams (A) told W to calm down. W responded by telling A to ‘fuck off’ and he pushed A very firmly in the chest. A then told W that he was under arrest for public order. Before A could say any more W began to fight him. A subsequently claimed damages for, inter alia, assault and false imprisonment. W was awarded damages of £5 for the brief imprisonment which occurred immediately before his own violence towards the police officer and subsequent arrest. That arrest had been lawful: a legally and factually adequate explanation of the reason for W’s arrest had been given.
Police officers stopped a vehicle being driven by B, a member of the Trinidad and Tobago defence force. The police had received information that the vehicle was being used for the transportation of illegal arms and ammunition. Nothing was found in the vehicle but B was discovered to be carrying an envelope containing $7,000 in $100 notes. One of the officers, PC Maharaj (M) had previously been briefed that army officers were involved in a kidnapping ring and he was aware of several recent kidnappings alleged to have involved army officers. M arrested B on suspicion of ‘involvement in kidnapping’. B was released from detention two days’ later and no charges were brought against him. B subsequently brought an action for false imprisonment. The action was dismissed at trial and the judge’s decision was upheld by the Trinidad and Tobago Court of Appeal. The Privy Council allowed B’s appeal and remitted the case to the Trinidad and Tobago High Court for damages to be assessed.
The Privy Council held that B had been given sufficient information as to the reason for his arrest: ‘while it is not sufficient that an officer has suspicion of some general unlawful conduct, neither under section 3(4) [of the Kidnapping Act 2003 (Trinidad and Tobago)] nor at common law is it necessary to establish that an arresting officer had in mind specific offences or statutory provisions’. (Lord Lloyd-Jones at [15]).
But, the Privy Council held, while M might have had reasonable grounds for suspecting that B was involved in some unlawful activity (eg, the transportation of unlawful weapons), he did not have reasonable grounds for suspecting that B was involved in kidnapping. This was because, inter alia:
In addition to the statutory powers under PACE, there exists a power (and duty) at common law to take reasonable steps to prevent an existing or imminent breach of the peace. The power can be exercised by a member of the public.
L was one of around 120 passengers on three coaches which left London one morning bound for an anti-war protest to be held at an RAF base at Fairford, Gloucestershire. The three coaches were stopped at a lay-by a couple of miles outside Fairford. Exercising powers under the Criminal Justice and Public Order Act 1994, s 60, the coaches were searched and various items were seized. One passenger was arrested for an earlier offence. A small number of passengers managed to leave the scene on foot. Three passengers who were due to speak at the protest were not required to re-board the coaches. All the other passengers, including L, had to get back on the coaches. The drivers were then instructed by the police to return to London. Officers blocked the doors of the coaches so as to prevent anyone from getting off the coaches as they departed. The coaches were given a police escort so as to prevent then stopping before reaching London.
C was given permission to apply for judicial review in order to challenge the Chief Constable’s actions in (i) preventing L from travelling to Fairford and (ii) forcibly returning her to London. The Divisional Court rejected complaint (i) but upheld complaint (ii). The Court of Appeal upheld the Divisional Court’s decision and dismissed D’s appeal and L’s cross-appeal.
The House of Lords allowed L’s appeal on complaint (i) and dismissed D’s cross-appeal on complaint (ii).
Lord Rodger:
‘The duty to prevent a breach of the peace . . . arises only when the police officer apprehends that a breach of the peace is “imminent” . . . or is “about to be committed” . . . or will take place “in the immediate future” . . . His apprehension “must relate to the near future” . . . If he reasonably apprehends that a breach of the peace is likely to occur in the near future, the officer’s duty is to take reasonable steps to prevent it.’ (At [62])
‘If [a police officer] merely thinks that, while a breach of the peace may happen, the chances are that it won’t, then he will not regard it as imminent. He will only regard it as imminent if he thinks that it is likely to happen.’ (At [67]).
Lord Brown:
‘no power (or duty) arises to take any preventive action whatever unless and until the constable (or citizen) reasonably apprehends that an actual breach of the peace is imminent (about to happen)’. (At [114]).
S 117 of PACE confers on the police a limited right to use reasonable force when exercising certain powers under the Act.
S 3 of the Criminal Law Act 1967 allows a person to use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.
A was stopped early one morning by police in Central London for suspected speeding. A was required to take a breathalyser test but despite repeated attempts, he failed to provide a sufficient sample. A was then arrested and an officer attempted to handcuff him. A pulled his arms away. One of the officers drew out his taser. A was told repeatedly to put his arms out. After 20 seconds, A folded his arms. A few seconds later, the officer discharged his taser. A fell to the ground and sustained an injury to his head.
A subsequently brought an action against the police claiming damages for, inter alia, assault and battery. The judge dismissed the action. The Court of Appeal allowed A’s appeal.
William Davis LJ (with whom Lady Carr CJ and Dingemans LJ agreed) said that where a defendant in a civil claim for assault and battery sought to rely on self-defence or on s 3 of the Criminal Law Act 1967 the defendant had to show that he honestly believed it was necessary to use force and that the force used was reasonable in all the circumstances. That latter requirement involved ‘an assessment of the proportionality of the force used’ – was the degree and nature of the force used reasonable? On the facts found by the judge, notwithstanding that the officer honestly believed that it was necessary to use force, it had not been objectively reasonable to use a weapon which is classified as a firearm. Note that the UK Supreme Court refused D permission to appeal on 1 April 2025.
It is clear that while there may be overlap between the statutory defences under s 117 PACE and S 3 CLA 1967 and the common law defence of self-defence, that overlap is not complete.
In 2003, C had been in a car which was stopped by the police in London. C ran off waving the gun he was carrying at the police. Minutes later, and unable to gain entry to his girlfriend’s flat, C fired several rounds at the front door. He again ran off waving the gun before being arrested. As a result of these events, C served five years of an eight year prison term.
In 2009 the police in London received intelligence that C was planning to carry out a robbery in the Midlands. At a pre-operation briefing, officers including one identified as Z32, were wrongly told that during the 2003 incident C had fired his gun at the police. Later that day, officers who were keeping C under surveillance wrongly reported that C appeared to be carrying a gun. A decision was made to stop the car in which C was travelling before it left London. While the car was stopped at traffic lights close to the North Circular road, officers surrounded the vehicle. Z32 looked in through the front passenger window and thought that C was pointing a gun at him. Fearing for his life, Z32 fired one round hitting and injuring C.
C claimed damages, inter alia, for battery. Nicol J dismissed the claim. Note that while Z32 could rely on the defence of self-defence (see below) neither CLA 1967, s 3(1) nor PACE, s 117 were relevant on the facts: ‘Z32’s evidence was clear. He fired to defend himself. He did not fire in order to arrest Mr Davis. He did not fire in order to exercise any power under the 1984 Act.’ (Nicol J at [39])
See also R (Laporte) v Chief Constable of Gloucestershire Constabulary [2006] UKHL 55 at [44] where Lord Bingham observed that s 3 CLA 1967 ‘has no application here, since during the period which is the subject of the claimant’s appeal [the Chief Superintendent] used no force, and his avowed object in acting as he did was to avert a breach of the peace, which (as already pointed out) is not in domestic law a crime.’
A person who is arrested other at a police station must generally be taken to a police station as soon as practicable (PACE, s 30(1A)). Under PACE, an arrested person may be detained without charge for a period which is capable of being extended in stages up to a maximum of 96 hours (ss 41-44).
Under PACE s 56, a person detained at a police station generally has the right to have someone informed of his arrest. In addition, he has the right to consult a solicitor privately at any time (s 58).
S 12(1) of the Prison Act 1952 provides that a prisoner who has been sentenced to imprisonment or committed on remand may be lawfully confined in any prison. One issue which has arisen is whether a prisoner whose term of imprisonment has not expired can ever have a claim against the prison authorities for false imprisonment.
The House of Lords heard the appeals in two cases together.
Hague was serving a 15 year prison term at Parkhurst prison. Due to concerns about his behaviour, H was transferred to Wormwood Scrubs prison where he was segregated from other prisoners. H brought an application for judicial review and sought, inter alia, damages for false imprisonment. The Divisional Court dismissed H’s claim. The Court of Appeal allowed H’s appeal in part. The CA held that while there had been a breach of the Prison Rules 1964, such a breach could not found a private law claim for damages or defeat the statutory defence under s 12 of the Prison Act 1952. According to the Court of Appeal, a claim for damages for false imprisonment could only succeed if the claimant was held in intolerable conditions.
Weldon claimed damages against the Home Office for assault, battery and false imprisonment. W, who was serving his sentence at Leeds prison, alleged that one evening he was dragged out of his cell by prison officers and taken to a strip cell where his clothes were removed. He was kept there overnight. The Home Office applied for the claim in false imprisonment to be struck out. The Court of Appeal, upholding the decision of the judge, held that the allegation of false imprisonment, whether based on interference with residual liberty or on the imposition of intolerable conditions, should proceed to trial.
The House of Lords dismissed Hague’s appeal and allowed the Home Office’s appeal in the Weldon case. No action for damages for false imprisonment lay against the Secretary of State or the governor of a prison whether on the ground of deprivation of residual liberty or subjection to intolerable conditions.
Lord Bridge:
‘the concept of the prisoner’s “residual liberty” as a species of freedom of movement within the prison enjoyed as a legal right which the prison authorities cannot lawfully restrain seems to me quite illusory. The prisoner is at all times lawfully restrained within closely defined bounds and if he is kept in a segregated cell, at a time when, if the rules had not been misapplied, he would be in the company of other prisoners in the workshop, at the dinner table or elsewhere, this is not the deprivation of his liberty of movement, which is the essence of the tort of false imprisonment, it is the substitution of one form of restraint for another’. (At 163).
‘a prison officer who acts in bad faith by deliberately subjecting a prisoner to a restraint which he knows he has no authority to impose may render himself personally liable to an action for false imprisonment as well as committing the tort of misfeasance in public office. Lacking the authority of the governor, he also lacks the protection of section 12(1). But if the officer deliberately acts outside the scope of his authority, he cannot render the governor or the Home Office vicariously liable for his tortious conduct.’ (At 164).
Lord Jauncey:
‘Placing Weldon in a strip cell and segregating Hague altered the conditions under which they were detained but did not deprive them of any liberty which they had not already lost when initially confined.’ (At 176).
Note that in R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58, a case involving detention under the Mental Health Act 1983, Lord Steyn said (at [42]) that the decision of the House of Lords in Hague ‘should no longer be treated as authoritative’ as regards convicted prisoners.
In other cases, the courts have had to determine whether a claim for false imprisonment lies where the claimant has been kept in prison for longer than he should have been. While Hague/Weldon might not be followed today, the next two cases demonstrate that a prisoner whose detention is unlawful will not necessarily have a claim for false imprisonment.
Having been charged with various offences, O was committed to custody by the Magistrates’ Court for trial in the Crown Court. The warrant of committal directed the prison governor to keep O in custody (unless she was released on bail in the meantime) until she was delivered to the Crown Court in due course of law. O remained in detention for a period which exceeded the maximum period permissible between committal and arraignment by 81 days. O brought an action, inter alia, against the Home Office claiming damages for false imprisonment. The Court of Appeal upheld the judge’s order striking out the claim.
Bingham CJ said (at 334-335) that the claimant had no right to be released after the expiry of the custody time limit: ‘her right was to be released on bail by order of the court’. Bingham CJ said (at 335) that while the claimant had been unlawfully detained once the custody time limit had expired, in the absence of a court order for the claimant’s release, the governor ‘was neither entitled nor bound to release her’.
When sentencing C for various offences, the judge told C that he would serve 2 years, 6 months. But the correct term, based on the judge’s figures, was actually 2 years, 3 months. The judges error went unspotted and the warrant of commitment specified a term of 2 years, 6 months. C sought leave to appeal both his conviction and sentence. The appeal was dismissed but the judge identified the error. C was told by the Registrar of Criminal Appeals that his case would be referred to the full Court of Appeal for his sentence length to be corrected. However, the referral was delayed and C ended up serving a term six weeks longer than he should have done. C brought claims in false imprisonment against the governors of the two prisons where he had been detained and against the Lord Chancellor’s Department. The judge dismissed the claims and the Court of Appeal dismissed C’s appeal.
The governors were not liable for false imprisonment as they had acted in accordance with the warrant of committal. The warrant provided justification for the governors’ actions notwithstanding that the detention was unlawful. The claim against the Lord Chancellor’s Department was rightly struck out being barred by the Crown Proceedings Act 1947, s 2(1), its acts or omissions being connected with the execution of judicial process.
In both Olotu and Quinland what ultimately mattered was that the governors had obeyed the warrants. In ex p Evans (No 2), by contrast, it could be said that the governor failed to do what the warrant had required of him:
E was sentenced to a term of two years’ imprisonment for various offences. The warrant of committal required the governor to calculate the release date by deducting from that two year term the appropriate period for time served on remand. Relying on previous Divisional Court authority as to how that appropriate period should be determined, the governor fixed E’s release date as being 18 November 1996. E sought leave for judicial review, and claimed damages for false imprisonment, on the ground that her release date had been wrongly calculated. On 15 November, the Divisional Court disapproved of the previous Divisional Court decisions as to how the appropriate period for time served on remand should be calculated and held that, adopting the proper approach, E’s release date was 17 September. E was immediately released. Collins J subsequently rejected E’s claim for damages for false imprisonment. He held that the governor had been entitled to rely on the previous Divisional Court authority. In case he was wrong, he assessed damages at £2,000.
Before the Court of Appeal, it was accepted that the governor had had no discretion as to E’s release date, that he had had no alternative but to adopt the approach as laid out in the then existing Divisional Court decisions and that, as a result, he could not have released E any earlier than he did.
Nevertheless the Court of Appeal (Lord Woolf MR and Judge LJ, Roch LJ dissenting) allowed E’s appeal and held that she was entitled to damages for false imprisonment. The Court of Appeal unanimously held that the correct figure for damages was £5,000. The House of Lords dismissed the prison governor’s appeal.
Judge LJ said (at 1078) that while ‘[t]he order of the court justifies the detention . . . the prisoner is entitled to be released immediately after the sentence has been completed’.
The decision in ex p Evans (No 2) may be contrasted with that in Percy v Hall (a case not concerned with the Prison Act itself):
Over a period of some 18 months, the claimants had been arrested by police more than 150 times under certain byelaws regulating access to land in North Yorkshire which was being used for military purposes. The claimants sought damages for wrongful arrest and false imprisonment. On a trial of preliminary issues, the judge held that the byelaws were invalid as they failed to identify the relevant land with sufficient clarity. Nevertheless, the defendant police officers were not prevented from relying on lawful justification as a defence to the claims. Allowing the defendants’ appeal, the Court of Appeal held that the byelaws were sufficiently certain and were valid and enforceable. Dismissing the claimants’ cross-appeal, the Court of Appeal held that even if the byelaws had been void, the police officers could have relied on the common law defence of lawful justification provided that they they could have shown that they had been acting in the reasonable belief that the claimants were committing an offence under the byelaws.
Simon Brown LJ said (at 948) that he could ‘see no sound policy reasons for making innocent constables liable in law’. He concluded that ‘even if these byelaws are properly to be regarded as void for uncertainty . . . that would not serve to deprive the constables here of a defence of lawful justification wherever they can show they were acting in the reasonable belief that the plaintiffs were committing a byelaw offence’.
In ex p Evans (No 2), Judge LJ distinguished Percy v Hall on the basis that ‘[t]he permissible scope for error by authorities responsible for detaining prisoners in custody under s 12(1) of the Prison Act 1952 is much narrower than it is for officers affecting an arrest’ (at 1078). Lord Woolf MR distinguished Percy v Hall on the ground that while ‘[t]here is respectable, though still controversial, authority for regarding a byelaw . . . as being valid for some purposes until set aside . . . [t]here is no similar authority for regarding a decision authoritatively overruled as still for some purposes setting out correctly what the law is.’ (At 1056)
The Mental Health Act 1983 makes provision for the compulsory admission to hospital for assessment and/or treatment of those suffering a mental disorder which meets specific criteria.
The Mental Capacity Act 2005 makes provision for a person (P) who lacks mental capacity due to an impairment of the mind or brain to be deprived of his liberty (most commonly in practice through residence in a care home) where such deprivation would be in P’s best interests and would be both necessary to prevent harm to P and a proportionate response to the likelihood and likely seriousness of that harm.
Broadly, the 2005 Act applies to an individual, P, who lacks capacity to make a decision in relation to a matter due to an impairment of the mind or brain. It provides that a person, D, may do an act or make a decision for on behalf of P (which would otherwise be unlawful because of a lack of consent by P). Generally, any act done, or decision made, for or on behalf of P must be done, or made, in his best interests.
S 5 of the MCA 2005 provides for the situation where one person, D, does an act connected with the care and treatment of another person, P, where P (is over the age of 16 and) lacks mental capacity in relation to the matter due to an impairment of the mind or brain.
Broadly, ss 5(1) and (2) state that provided that when doing the act D reasonably believes that P lacks capacity in relation to the matter and that it will be in P’s best interests for the act to be done, then D will be in the same position as if P had had capacity and had consented to D’s doing the act.
S 5(3) makes it clear that any liability for harm arising from D’s negligence is not affected by ss 5 (1) and (2).
Note that further qualifications apply where D does an act connected with P’s care and treatment that is intended to restrain P. To qualify for protection under s 5, D must reasonably believe that it is necessary to do the act in order to prevent harm to P and that the act is a proportionate response to the likelihood of P’s suffering harm and the seriousness of that harm. S 6(4) provides that D restrains P if (i) D uses, or threatens to use, force to carry out the act which P resists or (ii) D restricts P’s liberty of movement regardless of whether P resists.
Hale notes (Mental Health Law, 6th edn, 2017 at 2-023) that ‘[t]he mind or brain of a person who is knocked out for a time by an accident or an assault, or who has been permanently deprived of all powers of communication by trauma or a stroke, or who is suffering the effects of alcohol or drug use or abuse, will be impaired or disturbed [and hence fall within the MCA] even though that person does not have a mental disorder within the meaning of the MHA’.
To similar effects, Bartlett and Sandland (Mental Health Law: Policy and Practice, 4th edn, 2014) note (at 176) that the Code of Practice to the Act expressly includes incapacity due to alcohol or drugs.
An example of where the defendant was unable to rely on the best interests defence under s 5 is provided by ZH.
ZH, a severely autistic and epileptic 16 year old boy, had been taken by his carers to a local swimming pool for a familiarisation visit. It was not intended that ZH would get into the pool. ZH became ‘stuck’ by the poolside, being fixated by the water and unable to move. Several lifeguards were in attendance and ZH was standing by the shallow end. After some 30 minutes, the pool staff called the police for assistance. One of the officers approached ZH, said hello and touched him gently on his back. This caused ZH to move closer to the pool. The officer then tried to take hold of ZH’s jacket but was unable to stop ZH jumping into the pool. The police instructed the lifeguards who were in the pool to bring ZH to the side where he was lifted out of the pool. ZH was then placed on his back and restrained by several officers for some 15 minutes while handcuffs and leg restraints were applied. ZH was then placed in the back of a police van still in his wet clothes and in handcuffs and leg restraints. He was kept there for 25 minutes. As a result of the officers’ actions, ZH suffered PTSD and an exacerbation of his epilepsy. The judge awarded damages for, inter alia, assault and false imprisonment amounting to some £28,250. The Court of Appeal dismissed D’s appeal.
Dyson MR, with whom Richards and Black LJJ agreed, noted (at [39]) that a police officer (D) will not be liable for trespass to the person in respect of an act connected with the care of a person lacking capacity (P) if:
As for ZH’s entry into the pool, Dyson MR held that:
As for the period when ZH was in the pool, Dyson MR held that the judge had been entitled to hold that the officers should have given the carers the opportunity to calm ZH down.
Finally, Dyson MR held that the judge had been entitled to hold that the officers had not reasonably believed that it was in ZH’s best interests to restrain him. The officers had not believed that it was necessary and any such belief would not have been reasonable. Further, the restraint applied had not been proportionate.
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