In the recent decision in Zenati v (1) Commissioner of Police of the Metropolis (2) Crown Prosecution Service  EWCA Civ 80;  QB 758, the Court of Appeal held, for the first time, that the police may be liable to a suspect remanded in custody for a breach of Article 5 where they fail to provide the court with all relevant, material information when the court makes a decision to remand the suspect in custody; to act with expedition when conducting ongoing investigations or when responding to requests from the CPS whilst the suspect remains remanded in custody.
The police suspected that Mr Zenati had produced a counterfeit passport. They charged him with the relevant offences and, on 10th December 2010, he was remanded in custody by the magistrates’ court.
Later that day, the Crown Prosecution Service requested the officer in the case (OIC) to arrange a more comprehensive examination of the passport. This request did not reach the OIC until 31st December 2010. The OIC contacted the National Document Fraud Unit, but the passport was not actually given to the unit until 13th January 2011. On 19th January 2011, the NDFU informed the OIC that the passport was genuine. This information, however, was not passed to either the CPS or Mr Zenati. On 4th February 2011, the OIC emailed the CPS, stating that the NDFU had confirmed that the document was genuine “some time ago”. A bail hearing was fixed for 9th February 2011 and Mr Zenati was granted bail.
Mr Zenati sued the CPS and the Metropolitan Police for false imprisonment and breach of Article 5 of the ECHR (Art 5).
An arguable case?
For those familiar with the established common-law position, it would seem obvious that the police could have no liability in false imprisonment. Mr Zenati was detained on the decision of the court. The police cannot usually be liable for false imprisonment of a person where a court remands them in custody. There was no question of bad faith to found an action for malicious prosecution. However, the Court of Appeal found that despite the position in common law, there were potentially valid claims for a breach of Article 5 of the ECHR, specifically Articles 5(1) and 5(3).
- Article 5(1) provides that no person should be deprived of their liberty arbitrarily. Once there is no longer any reasonable suspicion that the person has committed the offence charged, the state must release them as soon as possible.
- Article 5(3) provides that a person must be brought before a judge promptly for the exercise of judicial authority. This imposes on the courts the obligation of ensuring “special diligence” in monitoring individuals’ detention and deciding upon whether they should remain in custody.
The court’s decision
On the Article 5(1) issue, the Court of Appeal said that the OIC ceased to have a reasonable suspicion that Mr Zenati had committed the offence on 19th January 2011, when the NDFU informed him that the passport was genuine. The OIC failed to inform the CPS of this as soon as possible after this date and in any event before the bail hearing on 4th February 2011.
Therefore, it was arguable that the police were responsible for a breach of Article 5(1). Mr Zenati’s continued detention was arguably arbitrary because there was no longer a reasonable suspicion that he had committed the offence charged. The OIC had not forwarded this information to the court and was potentially responsible for Mr Zenati’s continued arbitrary detention. If the OIC was potentially responsible then so was his chief.
As to Article 5(3), the Court said that the behaviour of the police was relevant in two ways. First, a slow investigation or one containing delays may cause a person to be detained for an unreasonably long period. This is because a court may go on ordering the continued detention of a person in custody throughout the period of the investigation. Second, a failure by the police or CPS to present the court with material information may cause it to order a person’s detention on an incomplete or inaccurate factual basis and, therefore, arbitrarily.
The Court of Appeal held that it was arguable that the police failed to progress the investigation with due expedition, such that the criminal court may have failed to conduct the proceedings with “special diligence”. This was because of the delay of the CPS to forward to the OIC between 10th and 31st December 2010 the request for further examination of the passport, and of the delay of the OIC to refer the passport to the NFDU between 31st December 2010 to 13th January 2011. Therefore, it was arguable that the police were responsible for a breach of Article 5(3).
Does the common law still matter?
This is the latest in number of recent firsts. Police officers and police lawyers need to recognise the continuing legal trend. The common-law authorities which previously conferred on the police an immunity, or limited the situations in which they could be found liable in respect of operational failures, are gradually being superseded by the rights and duties conferred and imposed by the Human Rights Act 1998.
Mr Zenati spent two months in prison on the basis of a suspected counterfeit passport that it took the NFDU just six days to confirm was genuine. It is perhaps unsurprising that the Court of Appeal felt he had an arguable case that his right to liberty had been infringed by the state. The Court of Appeal did not find the police liable. It did much more than that. It held that in principle, the police could be liable for actions and omissions which lead to a person being detained when they should not be, or being detained for longer than they should otherwise be.
All police officers must be made aware of their duty to ensure that where a person is or may be remanded in custody, they forward all relevant information to the relevant prosecuting authority or to the court and ensure that they act expeditiously in relation to any ongoing investigative issues or requests from the CPS for further information. Although the decision does not formally alter the Standards of Professional Behaviour, it is also easy to see the impact that that the potential for legal claims in this area may have on the complaints and discipline process.
Supervisory officers must ensure that more junior officers are aware of their duties, and the potential legal liability, where a suspect is detained on remand and either investigations are not prompt or they do not ensure new developments that undermine the prosecution or assist the defence are brought to the attention of the CPS and the court at the soonest practicable opportunity.
The reality for police officers is that where a person has been detained on remand, a failure to act with due expedition in forwarding relevant material to the prosecution authorities or the court, or to act upon requests for information from the CPS may result in claims being brought against their chief. Whether those claims are successful or not, they will be expensive in terms of time and resources. Officers must be ever more aware of their obligations and the consequences of their failures.