Chief Constable of Cleveland Police v McGrogan

Continued detention after arrest for an actual or threatened breach of the peace is lawful only where the officer honestly believes it necessary to prevent a further breach, there are objectively reasonable grounds, and there is a real, not fanciful, apprehension that release will lead to a breach or renewal within a short time. The assessment must consider all the circumstances, including the victim’s fears, proximity of the likely destination and the circumstances of release. Detention must be reviewed regularly and the detainee brought before the magistrates’ court at the earliest opportunity. The police may treat such detention as subject to the safeguards of the Police and Criminal Evidence Act 1984, although its ordinary detention regime does not apply.

The claimant was arrested after a domestic incident and detained by the police. The initial arrest and the first two periods of detention were accepted as lawful. The county court held that detention from late morning on the following Sunday until the claimant’s appearance before the magistrates was unjustified, and awarded him £1,500.

The Chief Constable appealed. The central issue was whether the common-law power to detain a person to prevent a renewed breach of the peace justified continued detention until the next available court hearing.

1. Disposition. Mr Justice Wall, with Lord Justice Mantell agreeing, allowed the appeal, set aside the county court judgment and entered judgment for the defendant.
2. Common-law framework. The power to arrest for breach of the peace is available where a breach is occurring, where an immediate breach is reasonably anticipated, or where a breach has occurred and renewal is reasonably believed threatened. The judgment relied on R v Howell [1982] QB 416 for this framework. Foulkes v Chief Constable of Merseyside Police [1998] 3 All ER 705 was distinguished because it concerned apparently lawful conduct without an established breach, whereas the present case involved violence and a threatened renewal. The court also noted the European Court’s approval of the legal clarity of the concept in Steel v UK [1999] 28 EHRR 603.
3. Continued detention. The court approved the lower judge’s formulation that detention is limited to cases involving a real, rather than fanciful, apprehension, based on all the circumstances, that release will lead to a breach or renewal within a short time. It added that the deciding officer must honestly believe further detention is necessary and must have objectively reasonable grounds for that belief. A generalised expectation that parties in a stormy domestic relationship will breach the peace at some later time is insufficient.
4. Application. The lower judge had stated the correct test but failed to apply it properly. The victim’s expressed fear, her home being within walking distance of the police station, the earlier violence, and the likely effect of handing the claimant his belongings remained important factors at the Sunday review. Those matters supported an honest belief, based on reasonable grounds, that release would lead to a renewed breach within a short time. The claimant’s sleep and calmness did not eliminate that risk. Continued detention until the Monday hearing was therefore lawful.
5. Safeguards. The code and statutory detention regime under Part IV of the Police and Criminal Evidence Act 1984 did not directly apply to breach-of-the-peace arrests, but treating detainees as if the Act applied was plainly correct. Regular reviews were required, and a lawfully detained person had to be brought before the magistrates’ court at the earliest opportunity in accordance with Article 5(1)(c) of the European Convention on Human Rights and Fundamental Freedoms. No further general guidance was necessary. The claimant was ordered to pay the costs of the appeal and the action, subject to the stated directions under the Access to Justice Act 1999.

1. Court of Appeal (Civil Division): In [2002] EWCA Civ 86, the appeal was allowed. The county court order was set aside and judgment was entered for the defendant. The claimant was ordered to pay the costs of the appeal and the action, subject to the stated costs directions.
2. Middlesbrough County Court: On 10 January 2001, His Honour Judge Bowers gave judgment for the claimant in the sum of £1,500 and ordered the appellant to pay 70% of his costs. The judge held the initial arrest and earlier detention lawful but found detention from late morning on Sunday until the Monday hearing unjustified.