The police (and other investigating authorities) have wide-ranging powers to prevent crime and investigate criminal allegations, as well as the ability to monitor citizens they suspect may carry out criminal offences in the future.

But these agencies do not always exercise their powers lawfully or appropriately. They may, on occasion, make unlawful arrests and institute malicious prosecutions which can result in significant personal and professional damage to an individual, even if a case is dropped. Incorrect and/or confidential information entered onto police databases can hamper someone’s career, impede their freedom of travel and infringe their right to private and family life.

Hickman & Rose’s lawyers are not only experienced in police station work and criminal law but also have significant expertise in civil claims for compensation where the police exceed their powers. We act swiftly and decisively for our clients to ensure that those powers are not abused and, where necessary, seek compensation if the police act outside the law. We have mounted many successful challenges and have an enviable record of successful claims.

What is an unlawful arrest?

Broadly speaking (and unless they are acting in accordance with a warrant) an officer needs only to demonstrate s/he has i) reasonable grounds to suspect an offence; ii) an honest belief in an individual’s involvement; and iii) that the arrest was “necessary”.

When is an arrest “necessary”?

Although the threshold for suspicion is relatively low, the police must still overcome the requirement to show that an arrest was “necessary” according to the defining criteria set out at section 24(5) of the Police and Criminal Evidence Act 1984. These criteria include circumstances where the name and/or the address of the suspect cannot be readily ascertained, to prevent that person’s disappearance and to allow the “prompt and effective investigation of the offence”.

If the police cannot demonstrate that the above criteria are made out, then an arrest will be unlawful and any time spent in custody as a consequence may give grounds for a civil claim for false imprisonment. The powers set out above have been subject to interpretation by the courts and, in particular, judges have considered the interpretation of “necessity” in a number of important cases.

Anyone considering whether a claim for false imprisonment is strongly advised to seek the advice of an expert law firm with experience in this area.

How do I challenge a search warrant?

When seeking to obtain a warrant to search premises, the police (or other state agency) must set out the purpose of the search and furnish the court with sufficient detail to satisfy the judge that a warrant is justified. This is normally done by completing a detailed application form but the court will also, routinely, hear evidence on oath from the officer in a private hearing.

In considering the application, the court must be satisfied that i) there are reasonable grounds for believing that an offence has been committed; and ii) there is material on the premises likely to be of substantial value to the investigation. If a warrant is granted, the police must also comply with certain procedural rules when it is executed; failure to do so may result in a direct challenge to the legality of the search.

A warrant gives the police wide powers to enter and search certain premises. Whilst not straightforward, one can challenge these powers (and their execution once the search has taken place) on three broad grounds:

the warrant is invalid – eg it was not signed, is out of date or fails to properly specify the items sought;
the factual pre-conditions for the issue of the warrant were not fulfilled eg, there was a failure to properly set out the required grounds before the court; and/or
the court did not give the application for a warrant proper consideration

If you can demonstrate that any of the grounds above are met, there may be scope for challenging the warrant by making an application to the High Court for judicial review. Such an application must be made promptly and, in any event, within three months of the decision to grant the warrant.

Can I challenge a police caution?

The administration of cautions to adults by the police amounts to a discretionary out-of-court disposal, often for relatively low-level offences, where the individual may not have any criminal history and admits their guilt. Since April 2015, the administration of simple cautions by the police is governed by guidance issued by the Ministry of Justice.

Broadly, the police can only administer a simple caution where an individual has i) made a clear and reliable admission to all of the ingredients of the offence in question; and ii) agrees to accept it. In the absence of a clear and reliable admission (where, for example, the individual has raised a defence), the administration of a simple caution will be unlawful, regardless of the police assessment of the plausibility of that person’s account.

What is malicious prosecution?

A malicious prosecution can arise where, broadly, proceedings are brought and/or continued against an individual in bad faith. To succeed in a claim for malicious prosecution against the police, the burden is on the individual to demonstrate that a prosecution instituted/continued by the police ended in their favour (eg an acquittal or discontinuance), causing loss/damage, that the prosecution occurred in the absence of reasonable and probable cause and was brought with “malice”.

Absence of reasonable and probable cause

The court must be satisfied that the police did not believe in the suspect’s guilt or that an ordinary person would not conclude in light of the information known at the time that the suspect was probably guilty of the offence in question

Malice

In a claim for malicious prosecution, “malice” amounts to a wrongful or improper motive or, put simply, a motive other than to see justice done. Examples of malice can include the desire to cover up officers’ wrongdoing or a deliberate targeting of the individual due to some previous conduct.

Malicious prosecution is complex and requires careful analysis and advice. Anyone considering this is strongly advised to seek expert legal advice, which will start with a robust assessment of the viability of any claim.

Can I prevent the disclosure of "relevant information" on an enhanced DBS certificate?

The Disclosure and Barring Service (DBS) was created in 2012. In accordance with its powers under the 1997 Police Act, the DBS will issue a criminal record certificate to any person who applies in accordance with the legislation. Where an individual is employed (or seeks work) in a particular sector (usually in the child or vulnerable adult workforce), an enhanced criminal record certificate is required (ECRC).

Even where an individual has no previous criminal history, an ECRC may include non-conviction information in the possession of the police that i) might be relevant to the position in question; and ii) ought to be disclosed. This information could include acquittals, an arrest which resulted in no further action or even an allegation which did not lead to an arrest.

When determining whether to release non-conviction information, the police are required to consider the gravity and reliability of the information in question as well as the time that has elapsed since the event(s) in question. Whilst details will vary case-by-case, it is important to bear in mind that the police may be relying on incomplete material or, alternatively, may not fully appreciate the nuances of the particular employment role or the degree of supervision involved in it.

Any disclosure decision based on inaccurate data or on a mistaken application of the relevance test may well be challengeable. Often the police force in question will invite appropriate representations form the affected individual before a final decision is made. With effective legal advice, this may result in a clear DBS certificate being issued.

By seeking early legal advice in relation to such issues, individuals may be able to prevent the disclosure of damaging allegations where they are neither relevant nor proportionate to disclose.

Expertise

Hickman & Rose has long and successful experience in this area of law. Our work includes:

challenging the use of arrest powers to facilitate voluntary attendance at the police station particularly where an arrest may affect someone’s career (eg doctors, care workers, teachers, financial professionals)
challenging the use and scope of search warrants
challenging the retention of personal data held by local forces or on the Police National Computer
bringing claims for false imprisonment and breach of the right to liberty
challenging police cautions, whether recent or historic
bringing claims for malicious prosecution and or misfeasance in public office
challenging police decisions to disclose information to the DBS

The firm’s expert lawyers have brought a number of successful claims for false imprisonment and malicious prosecution on behalf of clients, in both the county court and high court and can advise on whether such a claim may succeed in different circumstances.

We have acted for clients in a significant number of successful challenges to cautions and can advise on whether there may be a basis on which a caution can be removed, together with the prospects of success. The firm also routinely provides advice to clients seeking guidance on difficult and often marginal DBS disclosure decisions.