D’SOUZA (A.P.)
(APPELLANT)
v.
DIRECTOR OF PUBLIC PROSECUTIONS
(RESPONDENT)
Lord Keith of Kinkel
Lord Roskill
Lord Jauncey of Tullichettle
Lord Lowry
Lord Browne-Wilkinson
LORD KEITH OF KINKEL
My Lords,
For the reasons given in the speech to be delivered by my
noble and learned friend Lord Lowry, which I have read in draft
and with which I agree, I would allow this appeal and make the
order which he proposes.
LORD ROSKILL
My Lords,
I have had the advantage of reading in draft the speech of
my noble and learned friend Lord Lowry. I agree with him. For
the reasons he gives I would allow this appeal and remit the case
stated to the Crown Court with the directions which my noble and
learned friend proposes.
LORD JAUNCEY OF TULLICHETTLE
My Lords,
I have read the speech of my noble and learned friend Lord
Lowry and, for the reasons which he gives, would remit the case
stated to the Crown Court with the directions which he proposes.
LORD LOWRY
My Lords,
On 13 March 1989 the appellant was convicted and
conditionally discharged by the Sutton Justices for assaulting three
police officers in the execution of their duty contrary to section
51(1) of the Police Act 1964. Her father, Edwin D’Souza, was at
the same time convicted and conditionally discharged for similarly
assaulting one constable. Both defendants were ordered to pay
compensation and costs and both appealed to the Crown Court at
Croydon, which on 20 March 1990 dismissed their appeals. The
appellant appealed by case stated to the Divisional Court of the
Queen’s Bench Division (Nolan L.J. and Otton J.), which dismissed
her appeal but certified two questions as being of general public
importance. They were:
“1. Is a person who is lawfully detained pursuant to section
2 and Part II of the Mental Health Act 1983 deemed to be
in legal custody by virtue of section 137 of that Act, or
otherwise?
“2. Does the power to enter premises by force without a
warrant conferred by section 17(l)(d) of the Police and
Criminal Evidence Act 1984 require that the person
exercising that power is in hot pursuit of the person who is
unlawfully at large, and if so, what does ‘hot pursuit’
mean?”
The appellant, who appeals by leave of your Lordships’
House, had indeed assaulted the police officers and the propriety
of convicting her depended on whether at the time of the assaults
the police were acting in the execution of their duty. The answer
to that question depended in turn on whether the police were
entitled to enter by force without a warrant the premises in which
the assaults occurred.
The facts, as found by the Crown Court, were that Edwin
D’Souza, his wife Clara (“the patient”) and the appellant lived at
28a Hampton Road Worcester Park (“the house”). The patient had
a history of mental illness. A social worker approved under the
Mental Health Act 1983 (“the Act”), who had seen the patient’s
hospital notes and had been in touch with local residents and
police, was concerned about her welfare and on 21 July 1988 went
to the house to speak to the occupants. He was told to go away.
On 13 October 1988 the social worker pursuant to section 135 of
the Act obtained warrants to enter the house, went there with
police officers and two medical practitioners and gained entry.
The patient was examined by the doctors and taken to Sutton
Hospital, of which the Chiltern Wing is a psychiatric unit covering
the area in which the house is situated. According to section 135,
detention of the patient was lawful for 72 hours after her arrival.
Pursuant to section 13(2) of the Act, the social worker interviewed
the patient and applied for her to be admitted to the hospital for
assessment, and she was so admitted at 1 p.m. on 13 October 1988
on the recommendation in writing of two approved medical
practitioners. The Crown Court resolved against the appellant an
issue concerning the lawfulness of the patient’s admission to and
detention in hospital. The Divisional Court affirmed the Crown
– 2 –
Court’s view on that question and it has not been reopened in this
appeal.
The further facts relevant to the questions for decision by
your Lordships are set out in the case stated:
“The appellant Edwin D’Souza applied for the discharge of
the patient, his wife, from hospital.
“On 16 October, 1988, he went to see the patient at the
hospital, leaving at 3.30 p.m. By 3.55 p.m. the patient was
at the house.
“That day P.C. Pollard went to the Chiltern Wing of the
hospital, was shown documents and believed that the patient
was unlawfully at large. Later, with P.C. Beavan, P.C.
Robbins and two nurses he went to the house, arriving at
about 7 p.m. intending to return the patient to the hospital.
“The officers all reasonably believed (as was the fact) that
the patient was in the house, and that she was unlawfully at
large.
“The officers were in uniform. There was no response when
the door was knocked. They made it known they wanted to
speak to the patient, they were there to take her back to
hospital. Clarissa D’Souza said they would not open the
door, she screamed ‘don’t open the door’ and declined to
open it although the officers threatened to force entry.
“The glass panel of the door was broken and entry effected.
The appellants had been told that the officers were there to
take the patient back to hospital.
“We accepted the evidence of the officers. Where there
was a conflict we preferred the evidence called on behalf of
the respondents in the appeal (in the Crown Court) to that
of the appellants.
“We found the officers were attacked by the appellants. We
disbelieved the first apellant’s evidence that he first became
involved in violence when he remonstrated with police for
manhandling his daughter and was, for no reason, kicked by
a police officer. We disbelieved the second appellant when
in evidence she denied biting.
“The personal violence was initiated by Clarissa D’Souza who
had taken up an umbrella as a weapon and used it to strike
P.C. Pollard above the eye. She struck P.C. Beavan in the
cheek and bit his arm when he took hold of her arm.
“Edwin D’Souza grabbed P.C. Beavan from behind. When
P.C. Beavan turned, Edwin D’Souza punched him in the
stomach.
“When P.C. Robbins, who had been at the back of the
house, went in and took Clarissa D’Souza’s arm after she
struck P.C. Beavan with the umbrella, she bit him and tried
to hit him with the umbrella. At the time of the hearing
– 3 –
P.C. Robbins had a scar on his arm which we accepted
resulted from that bite. Evidence of Dr. Chan was read,
unchallenged.”
(In the fourth paragraph of the foregoing findings the words “as
was the fact” must refer to the belief that the patient was in the
house, since it was partly a question of law whether the patient
was unlawfully at large.)
The justification for entering the house must be sought in s.
17 of the Police and Criminal Evidence Act 1984 (“P.A.C.E.”),
which provides:
“17(1) Subject to the following provisions of this section,
and without prejudice to any other enactment, a constable
may enter and search any premises for the purpose –
(a) of executing – (i) a warrant of arrest issued in
connection with or arising out of criminal proceedings; or
(ii) a warrant of commitment issued under section 76 of the
Magistrates’ Courts Act 1980; (b) of arresting a person for
an arrestable offence; (c) of arresting a person for an
offence under – (i) section 1 (prohibition of uniforms in
connection with political objects), 4 (prohibition of offensive
weapons at public meetings and processions) or 5 (prohibition
of offensive conduct conducive to breaches of the peace) of
the Public Order Act 1936; (ii) any enactment contained in
sections 6 to 8 or 10 of the Criminal Law Act 1977
(offences relating to entering and remaining on property); (d)
of recapturing a person who is unlawfully at large and whom
he is pursuing; or (e) of saving life or limb or preventing
serious damage to property.
“(2) Except for the purpose specified in paragraph (e) of
subsection (1) above, the powers of entry and search
conferred by this section – (a) are only exercisable if the
constable has reasonable grounds for believing that the
person whom he is seeking is on the premises; and (b) are
limited, in relation to premises consisting of two or more
separate dwellings, to powers to enter and search – (i) any
parts of the premises which the occupiers of any dwelling
comprised in the premises use in common with the occupiers
of any other such dwelling; and (ii) any such dwelling in
which the constable has reasonable grounds for believing
that the person whom he is seeking may be.
“(3) The powers of entry and search conferred by this
section are only exercisable for the purposes specified in
subsection (l)(c)(ii) above by a constable in uniform.
“(4) The power of search conferred by this section is only
a power to search to the extent that is reasonably required
for the purpose for which the power of entry is exercised.
“(5) Subject to subsection (6) below, all the rules of
common law under which a constable has power to enter
premises without a warrant are hereby abolished.
– 4 –
“(6) Nothing in subsection (5) above affects any power of
entry to deal with or prevent a breach of the peace.”
It will be noted that, except for the power of entry to deal with
or prevent a breach of the peace, subsection (5) abolished all the
common law rules relating to a constable’s power of entry without
a warrant. (The power to use reasonable force is found in section
117(1)).
The statutory provision relied on by the police in this case
was, of course, section 17(l)(d), and therefore, to justify entry for
the purpose of recapturing the patient, she has to be a person (1)
who was unlawfully at large and (2) whom the police were
pursuing.
The first requirement takes me to the circumstances,
already mentioned, in which the patient was admitted to the
hospital and later left it and to the statutory background
consisting of the relevant provisions of the Act of 1983. The
effect of sections 2(1) and (4) is that a patient may be admitted
to hospital for assessment and detained there for a period not
exceeding 28 days if the application for admission is made in
accordance with subsections (2) and (3). Section 6(1) provides that
a duly completed application for the admission of a patient shall
be sufficient authority to take the patient and convey him to
hospital. There follow a number of provisions which it may be
convenient to set out at this point:
“6(2) Where a patient is admitted within the said period to
the hospital specified in such an application as is mentioned
in subsection (1) above, or, being within that hospital, is
treated by virtue of section 5 above as if he had been so
admitted, the application shall be sufficient authority for
the managers to detain the patient in the hospital in
accordance with the provisions of this Act. . . .
“17(1) The responsible medical officer may grant to any
patient who is for the time being liable to be detained in a
hospital under this Part of this Act leave to be absent from
the hospital subject to such conditions (if any) as that
officer considers necessary in the interests of the patient or
for the protection of other persons.
(3) Where it appears to the responsible medical officer that
it is necessary so to do in the interests of the patient or
for the protection of other persons, he may, upon granting
leave of absence under this section, direct that the patient
remain in custody during his absence; and where leave of
absence is so granted the patient may be kept in the
custody of any officer on the staff of the hospital, or of
any other person authorised in writing by the managers of
the hospital or, if the patient is required in accordance with
conditions imposed on the grant of leave of absence to
reside in another hospital, of any officer on the staff of
that other hospital.
– 5 –
“18(1) Where a patient who is for the time being liable to
be detained under this Part of this Act in a hospital – (a)
absents himself from the hospital without leave granted
under section 17 above; or (b) fails to return to the hospital
on any occasion on which, or at the expiration of any period
for which, leave of absence was granted to him under that
section, or upon being recalled under that section; or (c)
absents himself without permission from any place where he
is required to reside in accordance with conditions imposed
on the grant of leave of absence under this section.
he may, subject to the provisions of this section, be taken
into custody and returned to the hospital or place by any
approved social worker, by any officer on the staff of the
hospital, by any constable, or by any person authorised in
writing by the managers of the hospital.
. . . .
-
-
-
Where a patient who is for the time being, subject to
guardianship under this Part of this Act absents himself
without the leave of the guardian from the place at which
he is required by the guardian to reside, he may, subject to
the provisions of this section, be taken into custody and
returned to that place by any officer on the staff of a local
social services authority, by any constable, or by any person
authorised in writing by the guardian or a local social
services authority. -
A patient shall not be taken into custody under this
section after the expiration of the period of 28 days
beginning with the first day of his absence without leave;
and a patient who has not returned or been taken into
custody under this section within the said period shall cease
to be liable to be detained or subject to guardianship, as
the case may be, at the expiration of that period.
-
-
. . . .
(6) In this Act ‘absent without leave’ means absent from
any hospital or other place and liable to be taken into
custody and returned under this section, and related
expressions shall be construed accordingly.
“46(1) The Secretary of State may by warrant direct that
any person who, by virtue of any enactment to which this
subsection applies, is required to be kept in custody during
Her Majesty’s pleasure or until the directions of Her
Majesty are known shall be detained in such hospital (not
being a mental nursing home) as may be specified in the
warrant and, where that person is not already detained in
the hospital, give directions for his removal there.
(2) The enactments to which subsection (1) above applies
are section 16 of the Courts-Martial (Appeals) Act 1968,
section 116 of the Army Act 1955, section 116 of the Air
Force Act 1955 and section 63 of the Naval Discipline Act
1957.
. . . .
– 6 –
“128(1) Where any person induces or knowingly assists
another person who is liable to be detained in a hospital
within the meaning of Part II of this Act or is subject to
guardianship under this Act to absent himself without leave
he shall be guilty of an offence.
-
-
-
Where any person induces or knowingly assists another
person who is in legal custody by virtue of section 137
below to escape from such custody he shall be guilty of an
offence. -
Where any person knowingly harbours a patient who is
absent without leave or is otherwise at large and liable to
be retaken under this Act or gives him any assistance with
intent to prevent, hinder or interfere with his being taken
into custody or returned to the hospital or other place
where he ought to be he shall be guilty of an offence.
-
-
….
“135(2) If it appears to a justice of the peace, on
information on oath laid by any constable or other person
who is authorised by or under this Act or under section 83
of the Mental Health (Scotland) Act 1960 to take a patient
to any place, or to take into custody or retake a patient
who is liable under this Act or under the said section 83 to
be so taken or retaken – (a) that there is reasonable cause
to believe that the patient is to be found on premises
within the jurisdiction of the justice; and (b) that admission
to the premises has been refused or that a refusal of such
admission is apprehended,
the justice may issue a warrant authorising any constable
[named in the warrant] to enter the premises, if need be by
force, and remove the patient.
(3) A patient who is removed to a place of safety in the
execution of a warrant issued under this section may be
detained there for a period not exceeding 72 hours.
(6) In this section ‘place of safety’ means residential
accommodation provided by a local social services authority
under Part HI of the National Assistance Act 1948 or under
paragraph 2 of Schedule 8 to the National Health Service
Act 1977, a hospital as defined by this Act, a police
station, a mental nursing home or residential home for
mentally disordered persons or any other suitable place the
occupier of which is willing temporarily to receive the
patient.”
(The words in subsection (2) “named in the warrant” were repealed
by P.A.C.E. section 119(2) and Schedule 7.)
“137(1) Any person required or authorised by or by virtue
of this Act to be conveyed to any place or to be kept in
custody or detained in a place of safety or at any place to
which he is taken under section 42(6) above shall, while
being so conveyed, detained or kept, as the case may be, be
deemed to be in legal custody.
– 7 –
-
-
-
A constable or any other person required or authorised
by or by virtue of this Act to take any person into custody,
or to convey or detain any person shall, for the purposes of
taking him into custody or conveying or detaining him, have
ail the powers, authorities, protection and privileges which a
constable has within the area for which he acts as
constable. -
In this section ‘convey’ includes any other expression
denoting removal from one place to another.
-
-
“138(1) If any person who is in legal custody by virtue of
section 137 above escapes, he may, subject to the provisions
of this section, be retaken – (a) in any case, by the person
who had his custody immediately before the escape, or by
any constable or approved social worker; (b) if at the time
of the escape he was liable to be detained in a hospital
within the meaning of Part II of this Act, or subject to
guardianship under this Act, by any other person. who could
take him into custody under section 18 above if he had
absented himself without leave.
(2) A person to whom paragraph (b) of subsection (1) above
applies shall not be retaken under this section after the
expiration of the period within which he could be retaken
under section 18 above if he had absented himself without
leave on the day of the escape unless he is subject to a
restriction order under Part III of this Act or an order or
direction having the same effect as such an order; and
subsection (4) of the said section 18 shall apply with the
necessary modifications accordingly.
. . . .
(4) This section, so far as it relates to the escape of a
person liable to be detained in a hospital within the meaning
of Part II of this Act, shall apply in relation to a person
who escapes – (a) while being taken to or from such a
hospital in pursuance of regulations under section 19 above,
or of any order, direction or authorisation under Part HI or
VI of this Act (other than under section 35, 36, 38, 53, 83
or 85) or under section 123 above; or (b) while being taken
to or detained in a place of safety in pursuance of an order
under Part III of this Act (other than under section 35, 36
or 38 above) pending his admission to such a hospital
as if he were liable to be detained in that hospital and, if
he had not previously been received in that hospital, as if
he had been so received.
. . . .
(6) Section 21 above shall with any necessary modifications,
apply in relation to a patient, who is at large and liable to
be retaken by virtue of this section as it applies in relation
to a patient who is absent without leave and references in
that section to section 18 above shall be construed
accordingly.”
– 8 –
Mr. Kurrein, for the appellant, submitted that the courts
below had erred in law in holding that the two requirements of
section 17(l)(d) of P.A.C.E. were satisfied. On the question
whether the patient was unlawfully at large, he drew attention to
section 18 of the Act of 1983, which deals with absence without
leave having been granted under section 17 and he contrasted that
absence with escaping from legal custody or from a form of
constraint which is deemed to amount to legal custody, as
described in sections 137 and 138 of the Act of 1983. He
fortified his argument by referring to the contrast which is drawn
by section 128(1) and (2) between absence without leave and
escaping from legal custody. Only a person who has escaped from
actual or deemed legal custody, he continued, is a person
“unlawfully at large”: the patient here was merely absent without
leave and was not within the terms of section 137; therefore she
was not unlawfully at large when the police came to retake her.
Therefore, he claimed, the respondent failed at the first hurdle
erected by section 17(1)(d) of P.A.C.E.
Mr. Collins Q.C., for the respondent, “lukewarmly”, as he
frankly avowed, submitted that the patient was covered by section
137 and therefore was deemed to have escaped from legal custody,
from which it would follow that she was unlawfully at large. His
alternative argument, by which he set greater store, was that the
phrase “unlawfully at large” was not a technical expression and
aptly described the patient, given that she had without leave
absented herself from the hospital where she was lawfully
detained.
As to the second requirement of section 17(l)(d), Mr.
Kurrein submitted that the words “whom he is pursuing” did not
aptly describe the situation in the instant case, where the police,
acting on information received, had gone to the house where
(correctly, as it turned out) they believed the patient to be, since
“pursuing” inevitably involved the idea of physical proximity and
immediacy, a physical chase in the course of which the pursuer
follows his quarry with the intention of overtaking and capturing
the object of the pursuit.
Mr. Collins, while admitting that some limiting significance
must be given to the words “whom he is pursuing”, submitted that
the police were indeed “pursuing” the patient when they went to
the house and he also stressed the point that the finding of the
Crown Court on this question was a finding of fact. My Lords, I
now consider the rival contentions.
I am, in the first place, impressed by the proposition that a
patient who is absent from the hospital without leave is not for
that reason alone to be deemed to be a person who has escaped
from legal custody. Section 128 of the 1983 Act gives strong
support to the appellant and a careful study of section 137(1) also
leads me to the conclusion that none of the three things there
required or authorised to be done to a person is consistent with
the plight of the patient before she went absent from the hospital:
the words “required or authorised to be conveyed” are certainly
not apt; the words “detained in a place of safety” (which seem to
look back to section 135) do not, either immediately or when one
considers how “a place of safety” is treated elsewhere in the Act
of 1983, accord with the situation of a person who is admitted to
– 9 –
hospital for assessment; and the phrase “kept in custody” is found
in section 46(1) of the Act of 1983 with a meaning which if
imported into section 137(1), as I believe it must be, does not help
the respondent. It would indeed be remarkable if the phrase “kept
in custody” were so general in its meaning as to apply to every
person who is detained in accordance with the Act: this would
make nonsense of the contrast in section 128 which has already
been noted. The words in section 138(1)(b) “if at the time of the
escape he was liable to be detained in a hospital” do not show
that all persons whom those words describe are in legal custody.
They merely extend the category of persons who can retake the
escaper if the condition in section 138(1)(b) is fulfilled. The same
argument and counterargument could be applied to a person who is
subject to guardianship under the Act of 1983, but section 18
shows that a person who is subject to guardianship could not by
virtue of that circumstance alone be, or be deemed to be, in legal
custody.
Dealing with Mr. Kurrein’s contrast between section 18 and
section 137, Otton J. said:
“I do not accept this argument. Mr. Stage took us through
a body of old common law relating to the powers of arrest
in relation to felonies and misdemeanours. I do not think it
is necessary to do so. The answer is to be found in section
137(1) . . . Thus the authority to be kept etc. stems from
any part of the Act, and not merely from Part II. She was
thus deemed to be in legal custody under section 137 which
is in Part X.”
With respect, I cannot accept the judge’s conclusion as to the
effect of section 137(1), but the ability to distinguish between
being detained in a hospital under section 6(2) and being in actual
or deemed legal custody does not in my opinion conclude this part
of the argument in favour of the appellant. I accept the
submission of Mr. Collins that the expression “unlawfully at large”
does not have a technical or special meaning. A person who is
detained in hospital under section 6(2) is lawfully detained. If he
goes absent without leave, he is then at large, as the words in
section 128(3) “otherwise at large” plainly indicate, and, since he
ought not to be at large and is, by virtue of section 18(1), liable
to be taken into custody and returned to the hospital, he would
inevitably appear to be unlawfully at large until he is taken into
custody.
During argument a question was raised with Mr. Kurrein as
to the effect of the words in section 17(3) of the Act of 1983
“direct that the patient remain in custody”, as possibly showing
that the patient was already in custody before obtaining leave of
absence. Mr. Kurrein’s answer to this potentially unfavourable
inference was that the words “remain in custody” could mean not
only “still be in custody” but also “be in custody continuously while
absent with leave”. Even this explanation leaves the patient “in
custody”, and I think that a more helpful explanation from the
appellant’s point of view may be that the custody spoken of in
section 17(3) is not legal custody, which means the custody of the
law (as distinct from proper or lawful custody) and is a technical
expression. Nor is custody under section 17(3) deemed to be legal
custody by section 137(1) or by any other provision.
– 10 –
I should also mention that the appellant sought to found an
argument on the fact that section 135(2) empowers a justice to
issue a warrant authorising any constable to enter, if need be by
force, premises where a patient is reasonably believed to be, and
to remove the patient. He submitted that an application for a
warrant was the designated way of retaking a patient who was
believed to be in a house but was not covered by section 137(1)
and that there were no circumstances in which one could reach
the stage of having to consider the second requirement of section
17(l)(d) in relation to such a patient. My Lords, I am unable to
view section 135(2) in this light, because I believe that it provides
an alternative to section 17(l)(d) and not the exclusive method of
gaining access to premises in order to retake a patient such as
Mrs. D’Souza.
In his very helpful annotated edition of “The Police and
Criminal Evidence Act 1984” 2nd ed., (1990), Professor Michael
Zander comments, at p. 42 on section 17(l)(d):
“This reproduces the common law power. It includes those
who have escaped from a prison, or of a court or of the
police (sic) and those who have absconded from detention in
mental hospitals or other institutions of compulsory
detention. It is not certain whether the power only exists
in hot pursuit.”
This comment, which was reproduced by Otton J. in his
judgment, indicates the view of the learned author that a patient
such as Mrs. D’Souza who absconded from lawful detention in a
mental hospital, either before or after P.A.C.E. came into
operation, would be “unlawfully at large”, although not necessarily
by virtue of section 137(1) or any earlier provision to the like
effect. I turn now to the second question on the basis, which I
regard as justified, that the patient was “unlawfully at large”.
Was she a person “whom the constables were pursuing”?
That question, I admit, is a question of fact but, like all
such questions, it must be answered within the relevant legal
principles and paying regard to the meaning in their context of the
relevant words (in this case the words “whom he is pursuing” in
section 17(l)(d).) The material portion of the judgment in the
Divisional Court, the paragraphs of which I have numbered for
convenience, was as follows:
“1. There can be no doubt that the officers were
‘pursuing’ the patient in the sense that they were following
her with intent to capture her (see Shorter Oxford English
Dictionary). Although there is authority that, where the
police are pursuing a person for an arrestable offence, the
pursuit should be “hot”, for my part I do not regard this as
a desirable criterion or prerequisite to the pursuit and arrest
of a patient who is suffering from a mental illness.
“2. Sometimes the circumstances call for quick and
decisive action to avoid danger to others and the patient.
But any idea that every pursuit has to be “hot” in the sense
of rapid and calling for immediate action and entry is
clearly undesirable. This type of situation often calls for
patience, sensitivity, calmness and tact. The manner in
– 11 –
which a pursuit is effected must be a matter for the
discretion and judgment of those handling the situation. In
summary those responsible have a choice whether
-
-
-
to apply for a warrant (there is no obligation to do
so) -
or to pursue without a warrant
-
if the latter, to pursue ‘hotly’ or with circumspection
until they judge it expedient to enter and arrest.
-
-
“3. Here those seeking to retake the patient here had
consulted the records at the hospital and had not doubt seen
the reports, in particular that of Dr. Higginson, who had
described a history of paranoid schizophrenia and ‘it is very
possible that she is on the verge of another breakdown etc.’
It was accordingly apparent to those responsible that it was
necessary to mount a pursuit and not delay to obtain a
warrant.
“4. Thus it was open to the Crown Court to find, on the
material before it, that it was a proper exercise of the
powers of discretion of those seeking to retake the escaped
patient and that they were lawfully pursuing her. On this
analysis the justices were justified in finding that the
constables were pursuing the patient when they followed her
to the house in order to recapture her and return her to
hospital, and under section 117 of the Police and Criminal
Evidence Act were permitted to use reasonable force if
necessary.”
Before commenting on the judgment I wish to take the
matter a little further. The position about persons escaping from
custody is summarised in Clerk & Lindsell on Torts, 16th ed.
(1989) at paragraph 17-44:
“Escape from Custody. A person who has escaped from
lawful custody is still considered theoretically a prisoner,
and his recapture is but a continuance of his former
imprisonment. Recapture may therefore be effected without
the restrictions as to time or place which may have been
attached to the original execution of the process against
him. A person privileged from arrest is not privileged from
recapture. In effecting a recapture, at any rate upon a
fresh pursuit, it was propably lawful at common law to
break open the outer door of a dwelling-house. And, on this
principle, it was held that where a party had been formally
arrested by touching him through a broken window it was
lawful thereupon to break into the house in order to effect
his actual apprehension. [Section 17(l)(d) of the Police and
Criminal Evidence Act 1984 now empowers a constable to
enter and search any premises for the purpose of ‘…
recapturing a person who is unlawfully at large and whom
he is pursuing.’ Section 17(l)(d) would thus authorise entry
where an arrested person breaks free and flees from the
constable who has arrested him and is chased by that
constable and his colleagues. It is more doubtful that it
authorises entry and search on information to the police
that prisoner X, who escaped from custody some time ago,
is now to be found in certain premises. Police in that case
– 12 –
may have to seek a search warrant or rely on other powers
of entry conferred on them by the Act of 1984.]’
The text (as well as the footnotes) of the 15th edition
(1982) of Clerk & Lindsell paragraph 14-65 is almost identical with
that of paragraph 17-44 of the 16th edition before the new part,
which I have put in square brackets, with one exception: in the
fourth sentence, instead of the words “it was probably lawful at
common law”, which I have emphasised above, we find in the
earlier edition the words “it is lawful”. It can be seen, therefore,
~that, at least in the opinion of the learned editors, the old
common law provides a reliable guide to the meaning of section
17(l)(d) which has replaced it. Further light is cast on the
common law position by Hart v. Chief Constable of Kent [1983]
R.T.R. 484, which was mentioned in the appellant’s case but not in
argument. The defendant had an accident while driving a car and
was tracked to his home by a police dog. He gave a positive
specimen of breath standing partly inside and partly outside the
house. A constable told the defendant he was arresting him and
took hold of him. The defendant pulled back into the house and a
struggle ensued in the course of which the constable and another
policeman entered the house. The defendant’s mother asked the
police to leave and they did so, retaining their hold on the
defendant, who was later charged with failing to provide a
specimen of blood or urine and with assaulting a constable in the
execution of his duty. If, as the defence contended, the police
were trespassers in the house, that fact would have provided a
defence directly to the assault charge and indirectly to the road
traffic charge. McCullough J., sitting in the Divisional Court with
Griffiths L.J., delivered the judgment of the court in favour of the
Crown. He reviewed a number of ancient authorities and said, at
pp. 489-490:
“Accordingly, the arrest of the defendant by officers who
remained outside his house on land where they were still
authorised to be was lawful. Thereafter, they were not
engaged in attempting to arrest the defendant. They were
engaged in the essentially different exercise of recapturing a
prisoner who had escaped from lawful custody. The question
which therefore arises in this case is whether such a
prisoner can make good his escape from lawful custody by
reaching his dwelling house and by refusing permission to
enter to the officers pursuing him . . . The rights of
officers pursuing those who have escaped are not affected
by sections 2 and 3 of the Criminal Law Act 1967. They
derive from the common law, and they include the right to
break into a dwelling house if need be.”
In Foster’s Crown Cases 3rd ed. (1792), p. 320 it is said:
“. . . if a man, being legally arrested, . . . escapeth from
the officer and taketh shelter, though in his own house, the
officer may, upon fresh suit, break open doors in order to
retake him. …”
(Note: “suit” is an equivalent of “pursuit”, now obsolete.)
Many of the illustrations of pursuit (which made it lawful to enter
premises without a warrant in order to recapture an escaper)
describe recapture by the very constable from whom the person
– 13 –
arrested has escaped. I am not, however, saying that section
17(l)(d) applies only in such circumstances. I would assume that
the power of entry to recapture can apply in a case like the
present, provided the constable is “pursuing” the patient. But,
even so, I cannot find any evidence from which pursuit by the
constables before the break-in can be inferred. The verb in the
clause “whom he is pursuing” is in the present continuous tense
and therefore, give or take a few seconds or minutes – this is a
question of degree -, the pursuit must be almost contemporaneous
with the entry into the premises. There must, I consider, be an
act of pursuit, that is, a chase, however short in time and
distance. It is not enough for the police to form an intention to
arrest, which they put into practice by resorting to the premises
where they believe that the person whom they seek may be found.
I turn to the judgment in the Divisional Court.
It starts by saying that there can be no doubt that the
officers were “pursuing” the patient in the sense that they were
following her with intent to capture her. My Lords, with respect,
this observation avoids the real question. The word “follow” can
be used in different senses as, for example, in the direction
“Follow that car”, which may be contrasted with the statement
“You go to London today and I will follow on Saturday.” The
primary dictionary meaning of “follow” is “go after (a moving thing
or person)” and I suggest that that meaning must be akin to the
sense in which the word “pursuing” is used in section 17(l)(d). As
I said, Mr. Collins conceded that the requirement of “pursuing”
must limit the circumstances in which entry without a warrant can
take place, but, understandably, he was quite unable to explain
what limitation the clause in question could impose short of
satisfying the criterion laid down by the ordinary meaning of
“pursuing” and by the common law, as contended for by Mr.
Kurrein. Section 17(2)(a) applies to every paragraph except (e) of
section 17(1) and therefore every constable who intends to arrest a
person is seeking him and is obliged to have reasonable grounds for
believing him to be on the premises which he proposes to enter.
During argument my noble and learned friend, Lord Jauncey of
Tullichettle suggested what, if he will permit me to say so, I
found to be a most convincing analysis of section 17(1), pointing
out that paragraph (a) demanded the possession of a warrant,
paragraph (b) dealt with offences of a serious class, paragraph (c)
named specific offences the nature of which was considered to
justify entry and paragraph (e) dealt with two very urgent
situations, whereas entry without a warrant under paragraph (d) for
the purpose of recapturing a person who was unlawfully at large
could be made only if the constable were pursuing that person and
not in any other circumstances. Therefore a constable, acting on
information received but not being in possession of a warrant, who
simply goes to a house where he reasonably (and correctly)
believes that the person he is seeking can be found cannot, in my
opinion, conceivably say that he is pursuing that person. To do so
would empty the word “pursuing” of all meaning. The word “seek”
in section 17(2)(a) has a primary meaning “to go in search or quest
of, to try to find, look for”. It applies to every paragraph of
section 17(1). Pursuing is one manifestation of seeking, but the
latter word is not included in or equated by the former.
Paragraph 2 of my extract from the judgment states that
there may be different types of pursuit, depending on the needs of
– 14 –
the situation. This applies to the hunting of any quarry, which
may be chased at full speed, stalked with stealth or covertly
surrounded. But, whatever the method, pursuit is the common
characteristic of the operation. It is then said that those
responsible “have a choice whether (1) to apply for a warrant
(there is no obligation to do so) (2) or to pursue without a warrant
(3) if the latter, to pursue ‘hotly’ or with circumspection until
they judge it expedient to enter and arrest.” If this statement
means that a warrant is not necessary in any circumstances and
that the police, if they receive instructions to take a patient into
custody, have only to go and enter, using reasonable force, the
house where they reasonably believe him to be (and that this will
mean that they are pursuing the patient), I must respectfully
disagree.
Paragraph 3 concludes, “It was accordingly apparent to those
responsible that it was necessary to mount a pursuit and not delay
to obtain a warrant.” The words “mount a pursuit” relate back to
the conscious decision envisaged in choice (2) of paragraph 2, as if
a decision taken at the police station to “mount a pursuit” of
someone who is at that moment sitting, or perhaps sleeping, at
home meant that the constables who were dispatched to the
patient’s house would be “pursuing” him. I have already explained
why I cannot accept a meaning of pursuit which would be seen to
fit the action taken in those circumstances to the requirements of
section 17(l)(d). On the question of urgency, which is marginal to
the legal point at issue, I cannot help pointing out that, her
husband having left the hospital at 3.30 p.m., the patient was at
home by 3.55 p.m. and the police did not reach the house until 7
p.m. Moreover, sections 17(l)(e) and 17(6) can be resorted to
without a warrant if, which has not been suggested in the present
case, a real emergency is believed to exist. If the legislature had
intended the police to have a right of entry to premises in order
to recapture absconding patients independently of P.A.C.E. or of
the law in force in 1983, I would have expected an express
enactment to that effect. So far from that having happened,
section 135(2) of the Act of 1983 expressly authorises the issue of
a warrant to retake a patient, and this provision must be regarded
as superfluous if the respondent’s case and the Divisional Court’s
judgment are correct.
Coming to paragraph 4, I do not consider that it was open
to the Crown Court to find that “those seeking to retake the
escaped patient”, and in particular the constables concerned, were
pursuing her, because there was in my view no material in the
facts found on which (taking a proper view of the law) they could
properly reach that conclusion. In Edwards v. Bairstow [1956] A.C.
14, which was concerned with a finding of fact, Lord Radcliffe
said, at p. 36:
“When the case comes before the court it is its duty to
examine the determination having regard to its knowledge of
the relevant law. If the case contains anything ex facie
which is bad law and which bears upon the determination, it
is, obviously, erroneous in point of law. But, without any
such misconception appearing ex facie, it may be that the
facts found are such that no person acting judicially and
properly instructed as to the relevant law could have come
to the determination under appeal. In those circumstances,
– 15 –
too, the court must intervene. It has no option but to
assume that there has been some misconception of the law
and that this has been responsible for the determination. So
there, too, there has been error in point of law. I do not
think that it much matters whether this state of affairs is
described as one in which there is no evidence to support
the determination or as one in which the evidence is
inconsistent with and contradictory of the determination, or
as one in which the true and only reasonable conclusion
contradicts the determination. Rightly understood, each
phrase propounds the same test.”
My Lords, If I had to answer the first of the certified
questions, I would answer it in the negative, but, strictly speaking,
that question is irrelevant, according to the view which I have
taken, to the first issue which your Lordships have to decide.
Indeed, according to my view, even a more widely drawn question,
raising the issue whether the patient was unlawfully at large,
would be unnecessary to the final determination which I am
proposing.
As to the second question, the reference to “hot pursuit”
introduces an element of confusion. What section 17(l)(d) of
P.A.C.E. requires is pursuit by the constable in addition to an
intention to arrest followed by resort to the premises where he
reasonably believes that the person he is seeking can be found.
Therefore, my Lords, without answering the certified
questions, I would for the reasons I have given remit the case
stated to the Crown Court with a direction (1) to revoke the
orders that the appellant be conditionally discharged and that she
pay compensation and (2) to dismiss the charges brought against
her.
LORD BROWNE-WILKINSON
My Lords,
I have read the speech of my noble and learned friend Lord
Lowry and, for the reasons which he gives, would remit the case
stated to the Crown Court with the directions which he proposes.
– 16 –
Source: https://www.bailii.org/
