Can pre-emptive detention, purely to prevent a person committing an offence or a breach of the peace, where they have not yet committed an offence, be lawful under Article 5 of the ECHR? In R (Hicks) v Commissioner of Police of the Metropolis  EWCA Civ 3 the Court of Appeal has said, “yes”: it may be lawful under Article 5(1)(c), provided that at the time of the arrest there is an intention to take the arrested person before the courts. It may also be lawful under 5(1)(b) in certain circumstances, not closely defined in the judgment.
This post, which originally appeared as an article in Police Professional, examines the implications of two recent cases concerning police liability for breach of Article 2 and explores the different vulnerability of the police to common law negligence claims and claims under Article 2 with respect to operational failures.
In R (L) v Chief Constable of Cumbria  EWHC 869 (Admin) a teacher successfully challenged the Chief Constable’s decision to disclose certain information about him for the purposes of an Enhanced Criminal Record Certificate. The Court’s decision is instructive for disclosure officers because of the comprehensive summary of the relevant principles. It is also instructive for investigators, in terms of the solemnity required of them when asked to comment on allegations.
In Sarjantson v Chief Constable of Humberside Police  EWCA Civ 1252 the Court of Appeal found that the police owed a duty under Article 2 to take reasonable steps to respond to a 999 call reporting that a group of youths were attacking someone, regardless of whether the victim was identified or identifiable to the police.
In R (TD) v Commissioner of Police for the Metropolis & Secretary of State for the Home Department  EWHC 2231 (Admin) the Divisional Court found that the retention of an “NFA’d” complaint of sexual assault by the Claimant on police databases for 9 years was not, on the facts of the case, a disproportionate interference with the Claimant’s Article 8 rights.