One of the categories of arrest that seems most likely to trigger a subsequent claim for damages is that following entry into domestic premises without a warrant. Claims for trespass, assault and false imprisonment are costly for the force, in terms of legal fees, time and resources, officer morale and reputation.
Claimants may feel particularly aggrieved: their privacy has been violated, and they will seize the moral high ground: an Englishman’s home continues to be seen as their castle. The courts are receptive to concerns about trespass and invasion of privacy. This was the case for centuries before the right to privacy and family life was enshrined in the Human Rights Act 1988 (Schedule 1, Article 8).
Over the years, judges have given firm guidance to constables, imposing a high legal threshold, for crossing the threshold into a person’s home. Nevertheless, the frequency with which civil claims are brought, and need to be settled, suggests that some confusion lingers. This may be because some of the case law is counter-intuitive; or perhaps the guidance is simply not being heeded, for instance because of poor training.
Section 17 PACE
Entries onto private property are governed by section 17 of the Police and Criminal Evidence Act 1984. The key general powers under that section for entry without a warrant provide that a constable may enter and search any premises for the purposes of –
- Arresting a person for an indictable offence: section 17(b);
- Arresting a person for an offence under section 4 of the Public Order Act 1986: section 17(c)(iii); and/or
- Saving life or limb or preventing serious damage to property: section 17(e).
Officers may use reasonable force in the exercise of these powers, if necessary (section 117 of PACE).
Section 17 abolished all other general, common law powers to enter premises without a warrant, except the general power to prevent a breach of the peace. Parliament expressly defined – and limited – police powers of entry into domestic premises without a warrant. This principle must be reinforced during training and probation, and by sergeants during daily policing duties.
Entry onto private property to effect an arrest must be in respect of an arrest for one of the offences on the list of indictable offences; or an arrest otherwise specified by section 17 of PACE.
A problematic power is that entitling entry to arrest under section 4 of the Public Order Act 1986: the power is commonly invoked, and not always properly. Officers must exercise caution and be clear regarding why the offence reasonably suspected is one under section 4 (fear or provocation of violence) and not section 5 (harassment, alarm or distress). There is no power to enter and search without a warrant in respect of section 5.
The case of O’Loughlin v Chief Constable of Essex  1 WLR 374 (CA) made crystal clear that officers must tell an occupier of private premises the real reason why entry is required (thereby permitting an opportunity of voluntary admission), unless circumstances make it impossible, impracticable or undesirable to give the reason.
If the basis of entry is valid under section 17 and the officer has informed the occupier of the reason why entry is required, thereby giving the occupier an opportunity to permit entry voluntarily, the action of entering the private property will be sound even if consent is refused.
If the occupier consents to entry without a warrant, entry will of course be lawful, because the officer is on the property upon an invitation or license. But such consent must be informed and not revoked: Hobson v Chief Constable of Cheshire  EWHC 3011 (Admin).
Life and limb
‘Saving life and limb’ refers to an apprehension of some serious bodily injury. The case of Syed v Director of Public Prosecutions  EWHC 81 (Admin);  1 Cr App R 34 provides particularly firm guidance, in a familiar scenario. Yet this case is also poorly misunderstood.
The facts of Syed were that a member of the public called police to report a disturbance (shouting; possibly screaming) at the claimant’s address. When police arrived, they found no sign of any disturbance for themselves; they saw no injury or damage and heard no complaint from other occupants. The officers attempted to enter.
The claimant resisted entry, head-butting one officer and spitting in the face of another. He was convicted of assaulting a constable in the execution of his duty. Before the police officers attempted to force entry (and before the head-butt) Mr Syed had appeared to the officers to be evasive under questioning. The police explained to him that they would exercise their power to enter the property without a warrant, because of a fear for the welfare of a person or persons within the house. The court ruled that this was not a proper basis for exercise of the power of entry:
“Concern for welfare is not sufficient to justify an entry within the terms of s.17(1)(e). It is altogether too low a test. I appreciate and have some sympathy with the problems that face police officers in a situation such as was faced by these officers. In a sense they are damned if they do and damned if they do not, because if in fact something serious had happened, or was about to happen, and they did not do anything about it because they took the view that they had no right of entry, no doubt there would have been a degree of ex post facto criticism. But it is important to bear in mind that Parliament set the threshold at the height indicated by s. 17(1)(e) because it is a serious matter for a citizen to have his house entered against his will and by force by police officers. Parliament having set that level, it is important that it be met in any particular case.”
The claimant’s conviction for assaulting a constable in the execution of his duty therefore could not stand. Had the claimant been charged with the lesser offence of assault, the conviction may well have stood.
Breach of the peace
The essence of the concept of breach of the peace is violence or threatened violence: R (Laporte) v Chief Constable of Gloucestershire  UKHL 55;  2 AC 105. A constable must reasonably apprehend that a breach of the peace is occurring in his or her presence, or is about to occur or which, having occurred, may be renewed.
The case of Friswell v Chief Constable of Essex  EWHC 3009 (QB) arose from a report of domestic violence (in common with much of the case law in this field). It emphasises the stern approach that will be taken by the courts to an apparent failure to follow the guidance in O’Loughlin v Chief Constable of Essex. The police attended reports of a domestic dispute; the husband had assaulted the wife and effectively chased her out of the home into the garden. The husband then deliberately overdosed on tablets, though was not yet suffering their full effects when an experienced constable arrived (alone).
The constable was met by the wife, who informed him of what had happened. She was shaken, but did not show signs of injury and she apparently said she had not witnessed the overdose herself. The officer then entered the property, by force (albeit only in the technical sense: he opened a closed door). The husband objected and reacted and a struggle ensued. The constable deployed CS spray and arrested the man. Mr Friswell sued for trespass, false imprisonment and assault, and was successful.
On the officer’s own evidence, his primary reason for forcing entry was an apprehension that a breach of the peace might be renewed. He wanted to investigate and try to resolve the situation before leaving. His secondary reason was to investigate the report of an overdose.
However, the court emphasised that police do not have a power to enter premises without a warrant simply to carry out an investigation:
“In my judgment, given the particular sensitivities which can arise in the context of a domestic dispute and the attendance of police officers at the scene, the principles to be distilled from the authorities, in relation to entry by a police officer into a private dwelling house to prevent a breach of the peace in these circumstances, are as follows:
(1) The purpose of the power is to deal essentially with emergencies;
(2) Police officers should exercise special care in such cases. Only in exceptional circumstances will it be justifiable to enter into private premises in the context of a domestic dispute to deal with or prevent a further breach of the peace;
(3) The officer must, before he enters, be satisfied on reasonable grounds that there is a real and imminent risk of a breach of the peace;
(4) Where the original breach has not occurred in the police officer’s presence, the further breach of the peace apprehended must be immediate or about to occur;
(5) The threat to the peace must be sufficiently real and present to justify the extreme step of entering private premises and depriving of his liberty a citizen who is not at the time acting unlawfully.”
Every case will turn on its facts in all the circumstances. On the facts of Friswell, reasonable minds might differ as to whether the officer was impliedly given consent to enter the property by the wife. She had after all reported a possible overdose: not a trivial matter. It was perhaps obvious why the constable would then open the door, and the wife did not object. But the court found, as a question of fact, that consent could not be implied and would in any event have been expressly revoked by the husband.
Senior officers should train and remind their sergeants and constables of the scope of powers of entry without a warrant. Wherever possible, action should be planned in advance. Even in strained circumstances, entry should be cleared with a sergeant by telephone.
It is must be emphasised, and repeated, that
- officers must be clear in their own minds as to which of the lawful bases for entry they are relying on;
- they must explain that reason clearly to the occupier;
- consent must be expressly sought: consent to enter will not be implied by the courts lightly;
- thereafter, as ever, the resulting police action must be necessary and proportionate.
Given the ever-present risk that these entries may result in disciplinary and/or civil proceedings, it is essential that a proper contemporaneous record is always kept: the reason for entry, why entry was necessary, whether the reason was given prior to entry, and the response of occupier. It is well worth the very short time it takes to make such notes. As Mae West (almost) said, “Keep your pocket book, and one day your pocket book will keep you.”
This article was first published in Police Professional.