O’Loughlin v Chief Constable of Essex

A constable exercising a power to enter premises to arrest may use reasonable force only where it is necessary. Where an occupier is available, necessity will ordinarily require the constable to state, in ordinary language, the proper reason and authority for entry before using force. It is insufficient to say merely that the police wish to speak to, or investigate, an occupant when the lawful purpose is arrest.

The requirement is qualified where communication is impossible, impracticable, undesirable, unnecessary or plainly futile. The relevant guidance in Code B may reinforce the importance of prior explanation, but non-compliance alone does not create civil liability.

Police officers attended the claimant’s home after a neighbour alleged that his wife had damaged her car. The officers had grounds to arrest the wife for an arrestable offence, but the evidence accepted for the ruling was that they said they wished to speak to her about the damage rather than that they intended to arrest her.

At the Basildon Combined Court, HHJ O’Brien ruled that the subsequent forcible entry was unnecessary and unlawful. The jury was left to decide whether the police broke the front-door glass and the amount of damages. Judgment was entered for the claimant for £7,785.

The Chief Constable appealed, contending that the judge had wrongly imposed a prior-explanation requirement and should have obtained further jury findings before ruling on liability.

Appeal dismissed by a majority (Roch and Buxton LJJ; Thorpe LJ dissenting). Roch LJ agreed with and adopted Buxton LJ’s analysis.

1. Sections 17 and 117 of the Police and Criminal Evidence Act 1984 permit reasonable force only if it is necessary to enter premises for a statutory purpose. The constable bears a severe burden of proving necessity. In the ordinary case, where an occupier can be spoken to, that assessment requires the officer first to explain the true, substantive reason for entry. Technical language is unnecessary, but saying that the police wish merely to speak to a person about an investigation does not communicate an intention to enter in order to arrest.

2. The obligation is not absolute. It may be displaced where explanation is impossible, impracticable, undesirable, unnecessary or futile. On the facts accepted for the ruling, none applied. The officers could communicate with the occupier but gave a reason which conferred no right of entry. The force used was therefore not proved necessary.

3. Buxton LJ held that the general principle in Christie v Leachinsky, [1947] A.C. 573, protecting a citizen from an unexplained restraint on liberty, applied by analogy to forcible entry for arrest. The distinction between investigation or questioning and arrest was material. A citizen ordinarily has no legal duty to answer police questions or submit to entry merely for investigation.

4. Code B did not directly govern an entry where no search was contemplated. Its communication requirements were nevertheless relevant by analogy and reinforced the conclusion on necessity. A breach of the Code did not itself create civil liability.

5. The defendant’s pleaded case treated the claimant’s alleged obstruction of the entry as the basis for his arrest. Once the entry was unlawful, the officers were trespassers and the claimant was entitled to take reasonable steps to prevent entry. The evidence disclosed no separable later conduct that could sustain the pleaded justification.

6. A retrial was refused. The proposed issues depended upon cases not pleaded, advanced or supported by evidence at trial, and the jury’s existing findings did not justify reopening the case. No further detailed jury findings on damages were required.

Thorpe LJ would have allowed the appeal and ordered a retrial. He considered that necessity was an objective question for the jury on the whole factual context, with prior explanation a relevant factor but not a rule determining the issue.

• Court of Appeal (Civil Division) — By a majority, dismissed the Chief Constable’s appeal and refused a retrial.
• Basildon Combined Court — HHJ O’Brien, sitting with a jury, ruled that forcible entry was unlawful and entered judgment for the claimant. The jury determined the remaining factual issue concerning the door glass and assessed damages.