Keeping PACE: Searson and Searson v CC of Nottinghamshire Constabulary
11 August 2025
Searson and Another v Chief Constable of Nottingham Constabulary [2025] EWHC 1982 (KB)
By Kian Leong Tan
In Searson v Chief Constable of Nottingham Constabulary [2025] EWHC 1982 (KB), the Appellants successfully appealed against the dismissal of their claim for damages against the Respondent’s police force. The claim arose out of the circumstances of the Second Appellant’s unlawful detention contrary to the Police and Criminal Evidence Act 1984 (“PACE”). Wall J’s judgment emphasises the need for strict compliance with the spirit of the procedural safeguard of regular reviews of detention in s 40 PACE, which serves to protect the fundamental right of freedom of movement.
BACKGROUND FACTS AND THE LAW
The Appellants were a cohabiting married couple who had three children. The two older children left the home and subsequently approached the police with allegations of child cruelty and the malicious administration of a poison, triggering an investigation. At 8.30 a.m. on 26 March 2019, the Appellants were arrested at their home address and taken to Mansfield Police Station. Their continued detention was authorised by the custody sergeant at 8:51 a.m. for the First Appellant, and at 9:02 a.m. for the Second Appellant. The Appellants were interviewed separately between 12:52 to 2:26 p.m. and 3:00 to 4:30 p.m. respectively. The police also searched the Appellants’ house and spoke to their third child during this time.
Section 40(1) and (3) PACE provide that where a person is detained by the police in connection with the investigation of an offence, (a) a periodic review of detention must be carried out by an independent police officer unconnected with the investigation (‘the review officer’); and (b) the first review should take place no later than six hours after their detention was first authorised (‘the six-hour mark’). This requires that either the detained person or their solicitor “who is available at the time of the review” be given an opportunity to make oral or written representations about the continued detention to the review officer (ss 40(12)-(14) PACE). The requirement in (b) is subject to the caveat in s 40(4) that a review may be postponed if, at the six-hour mark, it is “not practicable to carry out the review … (i) if at that time the [detained person] is being questioned … the review officer is satisfied that an interruption of the questioning for the purpose of carrying out the review would prejudice the investigation … or (ii) if at that time no review officer is readily available”. A postponed review must then be carried out as soon as practicable (s 40(5) PACE). In the absence of a properly conducted review, there will be no lawful basis for the continued detention of a person.
The six-hour mark for the Appellants would have arisen at 2:51 p.m. and 3:02 p.m. respectively. On that day, an inspector of police (acting as the review officer) was responsible for carrying out reviews for detainees in two police stations and was unable to carry out the Appellants’ reviews at that point, thus lawfully postponing them. The review officer spoke to the First Appellant and reviewed his detention at 4:01 p.m., approving his continued detention. At 4:15 p.m., he also reviewed and authorised the continued detention of the Second Appellant – without having spoken to the Second Appellant and her solicitor (who were being interviewed at the time). The Appellants were later released that same evening and were not charged.
The Appellants unsuccessfully brought a claim in the County Court for damages for false imprisonment, trespass to the person and trespass to goods (arising from the alleged unlawful search of their house after their arrest). They sought leave to appeal to the High Court on five grounds but were granted permission on the papers only on a single ground: that the trial judge had erred in concluding that there had been no failure to comply with the statutory requirements of s 40 PACE; and consequently, that their continued detention after the defective reviews had been unlawful. They submitted that (a) the reviews were defective in that the review officer was unaware that nothing incriminating had been found in the search of their house, nor arising from the questioning of their third child; and (b) in respect of the Second Appellant’s review, the review officer had failed to comply with his s 40(12) PACE duty to consult.
DECISION
At a combined hearing, Wall J heard and dismissed the renewed application for leave in respect of the other four grounds but allowed the appeal on the remaining ground for which permission had been granted.
At [19], his Lordship considered and rejected the Appellants’ first submission above. The custody record of the Appellants indicated that the review officer had authorised their continued detention to complete the Second Appellant’s interview, and to then decide if any further interviews on that day were necessary. The trial judge had concluded that the review officer was a scrupulous man who had considered the situation appropriately before making his decision, and there was no basis for going behind that factual finding. It followed that there was no basis for complaint in respect of the First Appellant’s continued detention.
Turning to deal with the second submission, the Respondent contended that the review had been carried out by a review officer of the appropriate rank, and the lack of a consultation had not invalidated that process. In support of this proposition, the Respondent sought to draw a distinction between various PACE provisions which explicitly provided that the exercise of certain powers conferred on the police would be unlawful for failure to comply with the statutory requirements, and s 40 PACE, which did not so state ([22]).
This statutory interpretation argument was rejected by Wall J, who held that it did not follow from the mere fact that s 40 did not spell out the consequences of a failure to comply with its terms that the continued detention of a person would remain lawful ([23]-[24]). On the contrary (applying R v Roberts [1999] 2 Cr App R 243):
“The basic principle is that any citizen has the right to move freely … unless there is a lawful restraint placed on that freedom. … The importance of this right is demonstrated by the fact that any act which unlawfully restricts this freedom is actionable per se without proof of the detained person having suffered damage. It is against that background that any power to detain must be examined.”
The s 40 PACE power to authorise continued detention was comprised of various elements couched in strict terms, each of which served as a significant safeguard. A failure to comply with any single safeguard would thus mean that an effective review had not been carried out. In the circumstances, the failure to consult the Second Appellant or her solicitor meant that her detention between 4:15 p.m. (the time at which the first review had been lawfully postponed until) and 6:29 p.m. (when the Appellants were released) was unlawful ([29]-[30]).
Wall J also considered and rejected two arguments advanced by the Respondent. First, notwithstanding that the review officer faced the unenviable quandary of either continuing the review process without consultation or delaying the Second Appellant’s already late review, the only lawful options available to him were either to lawfully interrupt the ongoing interview for a short period to carry out the consultation; or to delay his review until the interview was completed. To carry out the review without a consultation was not a lawful option ([25]). Second, for the purposes of s 40(12) PACE, it was unarguable that a solicitor could be said to be unavailable where they were involved in a police interview with their client, especially in circumstances where it was the same police force which was responsible for questioning a detainee, and providing a responsible view of their detention (26]-[27]). Thus: “[u]navailability as far as a solicitor is concerned must mean more than he is at the police station where the suspect is being detained working only on the suspect’s case but currently involved in an interview with that client in an interview room.”
The judge awarded the Second Appellant nominal damages of £1, on the basis that had a lawful review been conducted, her continued detention would have been authorised, since she had been in the same position as the First Appellant (who was consulted) and there was no evidence that her continuing detention would have been inappropriate ([35]).
CONCLUSION
Searson serves as a powerful reminder of the stringency of both the PACE procedural safeguards and the scrutiny of the courts in policing them (as to which, see Roberts (above) and also Lumba v Home Secretary [2011] UKSC 12) in circumstances where what is at stake is the State-sanctioned deprivation of a person’s liberty. The Court’s strict interpretation of PACE reinforces the message that substantive compliance cannot be sacrificed on the altar of expediency, and in cases such as this, form is every bit as important as substance.
Kian Leong Tan is a future pupil barrister at 5 Essex Chambers and a former Judicial Assistant at the High Court of England and Wales.
