Court of Appeal rules on police duty to suspects in detention – Diarmuid Laffan
27 February 2015
Zenati v Commissioner of Police of the Metropolis and another  EWCA Civ 80 – read judgment
Matthew Donmall appeared for the Crown Prosecution Service in this case. He had nothing to do with the writing of this post.
In a recent judgment, the Court of Appeal held that where a criminal suspect is remanded in custody, Article 5 of the Convention requires the police to notify the court as soon as possible if there is no longer a reasonable basis for suspecting them. It also held that the police and CPS must aid the court in observing its duty to show ‘special diligence’ in managing a suspect’s detention, by investigating the case conscientiously and by promptly bringing relevant material to the court’s attention.
The Claimant in this case holds both British and Libyan citizenship. On 7th December 2010 he was arrested in relation to a public order offence, and produced his British passport. The police suspected this was counterfeit and charged him under the Identity Cards Act 2006.
He was brought before the Magistrates on 10th December and remanded in custody. On the same day, the CPS completed a request for the police to conduct a thorough examination of the passport. This was not passed to the investigating officer until 31st December, while the passport did not reach the National Document Fraud Unit until 13th January. On the 19th, the NDFU informed the police that it was real.
At a plea and case management hearing in the Crown Court on 4th February, the CPS requested 28 days to obtain a statement from the immigration authorities confirming that the passport was a forgery. The judge gave them 14. Later on that day, the police e-mailed the CPS informing them that the NDFU had cleared the passport “some time ago”. This came to light at a bail hearing on the 9th.
The Claimant brought two claims: (1) under s.6 HRA for breaches of his rights under Article 5 of the Convention; and (2) for false imprisonment. In the County Court, these were struck out as unarguable under CPR 3.4(2)(a). The Claimant appealed.
The right to liberty contained in Article 5(1) ECHR may only be restricted in line with the Article’s subsections. So far as relevant, Article 5(1)(c) allows someone to be lawfully arrested or detained for the purpose of bringing them before a ‘competent legal authority’ on reasonable suspicion of having committed an offence.
Article 5(3) provides that anyone arrested or detained under Article 5(1)(c) “shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial…”
Article 5(4) gives detainees the right to request timely judicial review of their detention, while 5(5) gives those detained in contravention of the Article a right to claim compensation.
In essence, the Claimant submitted that: (1) the purpose of Article 5(1)(c) is to prevent arbitrary detention; (2) detention on suspicion of an offence becomes arbitrary when no reasonable basis for suspicion subsists; hence (3) from the time of the NDFU’s reply on 19th January, the Claimant’s detention was unlawful.
As against this, the Defendant submitted that Article 5(1)(c) read in conjunction with 5(3), merely requires reasonable suspicion to exist on each occasion the detainee is brought before a court, such that the dissipation of reasonable suspicion in between court appearances does not render continuing detention unlawful pending the next appearance.
Lord Justice Dyson MR agreed with the Claimant’s submission that the purpose of Article 5(1)(c) is “protecting the individual from arbitrariness” (James v United Kingdom (2013) 56 EHRR 12, at ). He accepted that while the provision’s purpose might arguably be fulfilled where the suspect is under reasonable suspicion when they first appear, with subsequent arbitrariness protected against by Articles 5(3) and 5(4), this would leave a gap in protection between the lapse of suspicion and the detainee’s next appearance or request for review (paragraph 16).
He concluded that where prosecuting authorities no longer possess reasonable suspicion, they must bring this to the court’s attention as soon as possible (paragraph 20). Applying these findings to the facts at hand, it was arguable that the police had caused a breach of Article 5(1)(c) by failing to bring the true situation to the CPS’ (and thereby the court’s) attention as soon as possible after 19th January and, at the very least, by failing to make the situation clear at the plea and case management hearing on 4th February.
On behalf of the Claimant, Hugh Southey QC submitted that Strasbourg’s Article 5(3) jurisprudence places an obligation on all state authorities – be they judicial, investigative or prosecutorial – to exercise ‘special diligence’ (Clooth v Belgium (1992) 14 EHRR 717) in cases involving suspects detained before trial.
In the Defendant’s submission, the trial judge had been right in finding that Article 5(3) simply requires that a suspect is brought promptly before a court, and that the court should be diligent in ensuring the case is heard within a reasonable time. According to the Defendant, there was no free-standing right against the police or CPS to have a case investigated with special diligence.
Lord Dyson undertook a review of the relevant Strasbourg jurisprudence (paragraphs 32-42) and used this as a basis for accepting “that the obligation of special diligence is imposed on the courts and not on authorities such as the defendants.”
In passing, it is worth noting that this does not appear to be an inexorable interpretation of the cases cited, for example in Wemhoff v Federal Republic of Germany (1979-1980) 1 EHRR 55, one of the factors cited as relevant to the question as to whether or not there has been a breach of Article 5(3) is “the slowness of the investigation” (at ).
This is something picked up on by Lord Justice McCoombe in his short concurring judgment which states, in reference to the distinction between investigating/prosecuting and judicial authorities:
it seems to me that those distinctions have perhaps been of little relevance in the jurisprudence of the European Court because in so many countries within that court’s jurisdiction control of the investigation and prosecution processes occurs under the supervision of judicial officers.”(paragraph 61)
In any event, Lord Dyson went on to find that the conduct of the investigating authorities is of relevance to the Court’s duty under s.5(3) in two ways: firstly, a dilatory investigation may lead the court which indulges it through successive bail refusals to sponsor arbitrarily lengthy detention (paragraph 43); secondly, if the investigating authorities do not bring all relevant information to the court’s attention, it may authorise detention which lacks sufficient evidential basis and is therefore arbitrary (paragraph 44).
In this case it was at least arguable that the police and CPS had led the court to detain the Claimant for an unreasonably long period in breach of Article 5(3). There was no apparent explanation as to why it had taken from 10th December until 31st December for the CPS’ request to reach the investigating officer, while the police had not explained why it had taken from then until 13th January to get the passport to the NDFU (paragraph 48).
Equally, by failing to inform the court of the state of play from 19th January forward, the police had arguably led it to sponsor arbitrary detention.
In contrast the claim for false imprisonment was given short shrift. The tort requires the Defendant to detain the Claimant without lawful authority. However long-standing common law precedent holds that a party making an erroneous charge which leads to detention cannot be liable for false imprisonment (although they may be liable for malicious prosecution) as it is the court which orders the detention and gives it legal sanction (paragraph 50).
Lord Dyson declined the Claimant’s invitation – by analogy with Campbell v MGN Limited  2 AC 457 – to develop the common law of false imprisonment in step with human rights law, to encompass situations where a breach of Article 5 is established. On the Claimant’s submission, the advent of the HRA justified this development, however Lord Dyson found no compelling justification for such a radical advance in the common law, especially as compensation for a breach of Article 5 is available under 5(5) (paragraph 54).
This case provides an example of Convention law filling in gaps in the protection of individual rights under national law; it is well-established that neither the police (Hill v Chief Constable of West Yorkshire  AC 53) nor the CPS (Elguzouli-Daf v The Commissioner of the Police of the Metropolis & Another  2 WLR 173) owe a duty of care in the performance of their investigative duties.
However the judgment is not without its tensions. For example, if it is right that the duty under Article 5(3) to ensure that suspects are tried within a reasonable time or released falls upon the courts alone, can any lack of diligence on the part of the investigative authorities be said to influence the exercise of the court’s judgment to such an extent that it causes the court to breach its duty of diligence?
It is not clear why Lord Dyson’s reasoning in rejecting the false imprisonment claim does not apply by analogy:
Even where the court is misled as to the true facts, that does not mean that it does not exercise its independent judgment in deciding whether or not to order an individual to be detained.(paragraph 55)
Equally, if a duty is to be imposed on the CPS or police why not just say so? The only immediately apparent reason is that recognition of such a duty in formal terms, if not in essence, remains taboo.
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