D’Souza v Director of Public Prosecutions

A constable may enter premises without a warrant under section 17(1)(d) of the Police and Criminal Evidence Act 1984 only when pursuing a person who is unlawfully at large. Pursuit requires an act of pursuit or chase, however short in time or distance, which is almost contemporaneous with entry. An intention to recapture someone, followed by travel to premises where that person is believed to be, is insufficient.

A patient lawfully detained in hospital who absents herself without leave may be unlawfully at large even though she has not escaped from actual or deemed legal custody. The separate warrant procedure under mental health legislation provides an alternative means of entry; it is not necessarily exclusive.

The appellant was convicted of assaulting three police officers in the execution of their duty. The officers had forced entry into her family home to retake her mother, who had absented herself without leave from a hospital where she was lawfully detained for assessment.

The Crown Court dismissed the appellant’s appeal. The Divisional Court then dismissed her appeal by case stated, holding that the officers could enter without a warrant under section 17(1)(d) of the Police and Criminal Evidence Act 1984.

The central issues were whether the patient was unlawfully at large and whether officers who went to premises where they believed she could be found were “pursuing” her within section 17(1)(d).

1. The appeal was allowed unanimously. Lord Lowry delivered the leading speech. Lord Keith of Kinkel, Lord Roskill, Lord Jauncey of Tullichettle and Lord Browne-Wilkinson agreed with his reasons and proposed directions. The Divisional Court’s order was set aside and the case was remitted to the Crown Court.

2. Per Lord Lowry, section 17(1)(d) of the Police and Criminal Evidence Act 1984 imposes two requirements. The person must be unlawfully at large and must be someone whom the constable is pursuing. The word “pursuing” limits the warrantless power of entry and cannot be equated with merely seeking a person.

3. Pursuit requires an act of pursuit or chase, however short in time and distance. Because the statutory verb is in the present continuous tense, pursuit must, subject to questions of degree, be almost contemporaneous with entry. It is insufficient that officers intend to recapture someone and then go to premises where they reasonably believe that person can be found. Pursuit may be conducted rapidly, stealthily or with circumspection, but an actual pursuit remains essential.

4. The officers had acted on information and arrived at the house more than three hours after the patient returned there. There was no evidence from which pursuit before the forced entry could properly be inferred. The Crown Court’s contrary finding therefore disclosed an error of law under the principle in Edwards v Bairstow [1956] A.C. 14.

5. Lord Lowry considered that an ordinary patient detained under section 6(2) of the Mental Health Act 1983 is not, by that fact alone, in actual or deemed legal custody under section 137(1). Nevertheless, a lawfully detained patient who absents herself without leave is at large when she ought not to be and is liable under section 18(1) to be taken into custody and returned. Such a patient is therefore “unlawfully at large”. Lord Lowry treated these conclusions as unnecessary to the ultimate determination and declined formally to answer the certified questions.

6. The warrant procedure under section 135(2) of the Mental Health Act 1983 was an alternative to section 17(1)(d), rather than the exclusive method of gaining entry to retake such a patient. On the facts, however, section 17(1)(d) did not authorise entry because there had been no pursuit.

7. The Crown Court was directed to revoke the appellant’s conditional discharge and compensation order and to dismiss the charges against her.

1. House of Lords: Allowed the appeal unanimously, set aside the Divisional Court’s order and remitted the case to the Crown Court with directions to revoke the relevant orders and dismiss the charges.

2. Divisional Court of the Queen’s Bench Division: Nolan L.J. and Otton J. dismissed the appeal by case stated but certified two questions of general public importance.

3. Crown Court at Croydon: Dismissed the appeals against conviction on 20 March 1990.

4. Sutton Justices: Convicted the appellant on 13 March 1989 of assaulting three police officers in the execution of their duty contrary to section 51(1) of the Police Act 1964. She was conditionally discharged and ordered to pay compensation and costs.