D'Souza v Director of Public Prosecutions

The House of Lords allowed the appellant's appeal and set aside the order of the Divisional Court. The primary legal issue was the construction of section 17(1)(d) of the Police and Criminal Evidence Act 1984: entry without a warrant for the purpose of "recapturing a person who is unlawfully at large" is available only where the constable is in fact "pursuing" that person. "Pursuing" requires a contemporaneous act of pursuit (a chase or immediate following) and cannot be satisfied merely by police forming an intention and attending premises where the person is believed to be. The court also considered whether a patient absent without leave from hospital fell within the statutory concept of being "unlawfully at large" (Mental Health Act 1983) and concluded that that expression is not a strictly technical term; a person absent without leave may be described as unlawfully at large, but the appeal was determined on the ground that the police were not shown to have been "pursuing" the patient within section 17(1)(d). The Divisional Court's conclusion that the police were pursuing the patient was legally unsustainable and the matter was remitted to the Crown Court with directions to revoke the appellant's conditional discharge and to dismiss the charges against her.

This appeal arose from convictions for assaulting police officers executing their duty when officers entered the appellants' home to retake a psychiatric patient who had left hospital. The appellant (Clarissa D'Souza) had been convicted by magistrates and had her appeal to the Crown Court dismissed. The matter proceeded by case stated to the Divisional Court, which dismissed the appeal but certified two questions of public importance concerning (1) whether a person detained pursuant to Part II of the Mental Health Act 1983 is "deemed to be in legal custody" by section 137 of that Act and therefore "unlawfully at large", and (2) whether the power in section 17(1)(d) of the Police and Criminal Evidence Act 1984 to enter premises to recapture a person requires that the constable be "in hot pursuit" and what "hot pursuit" means.

The House of Lords reviewed the factual findings (the patient had been admitted for assessment and left hospital without leave; police, believing she was unlawfully at large, went to the house later that day and effected entry; the officers were assaulted) and focused on statutory construction. The court analysed the Mental Health Act 1983 provisions (including sections 6, 17, 18, 135, 137, 138 and 128) and concluded that although a person absent without leave may be aptly described as "unlawfully at large" in ordinary language and for many practical purposes, it was unnecessary to decide definitively whether every such person was deemed to be in legal custody under section 137. The central ruling was that section 17(1)(d) PACE requires that the constable be actually "pursuing" the person at the time of entry: "pursuing" carries the ordinary meaning of going after or chasing and therefore connotes contemporaneous action and immediacy. The mere formation of an intention to arrest and going to premises where a person is believed to be does not, without more, constitute the requisite "pursuit". On that basis the Divisional Court's finding that the constables were "pursuing" the patient was a legal error. The appeal was allowed; the House of Lords set aside the Divisional Court order, remitted the case stated to the Crown Court with directions to revoke the appellant's conditional discharge and to dismiss the charges, and provided that costs of the appellant be taxed in accordance with the Legal Aid Act 1988.

Appeal allowed. The House of Lords held that entry under section 17(1)(d) PACE to recapture a person "unlawfully at large" is only justified when the constable is actually "pursuing" that person; "pursuing" requires contemporaneous pursuit (a chase or immediate following) and is not satisfied merely by the police forming an intention and attending premises where the person is believed to be. Because the Divisional Court could not lawfully have found that such pursuit had occurred, its order was set aside and the case remitted with directions to the Crown Court to revoke the conditional discharge and dismiss the charges.

Magistrates' conviction (Sutton Justices) and conditional discharge (13 March 1989); appeal to Crown Court at Croydon dismissed (20 March 1990); case stated to the Divisional Court of the Queen's Bench Division (Nolan L.J. and Otton J.), which dismissed the appeal and certified two questions of public importance (order dated 26 July 1991). Appeal to the House of Lords allowed [1992] UKHL 10 (15 October 1992).