Fitzpatrick & Ors v The Commissioner of Police of the Metropolis

The legality of an arrest under section 24 of the Police and Criminal Evidence Act 1984 depends on whether the officer actually suspected an offence, whether that suspicion was objectively reasonable, whether the officer actually believed arrest was necessary for a statutory reason, and whether that belief was objectively reasonable. The arresting officer may rely on reliable intelligence, assessed in its context, and need not possess evidence sufficient for prosecution.

The statutory necessity test substantially subsumes the former public-law discretion. An arrest may properly facilitate a prompt and effective interview and the preservation of evidence. A search warrant is protected from challenge where no sufficiently grave defect appears on its face; alternatively, section 32 may authorise a search of premises following an arrest made there.

Solicitors and their firm brought claims against the Commissioner arising from arrests, the search of the firm’s premises, the seizure of documents, and the continuation of the solicitors’ bail and investigation. The claims included assault, battery, false imprisonment, trespass, malicious procurement of a search warrant, breach of article 8 of the European Convention on Human Rights, and related damages and declaratory relief.

The arrests concerned suspected offences under sections 328 and 330 of the Proceeds of Crime Act. The search warrant was obtained under section 8 of the Police and Criminal Evidence Act 1984. The central issues were whether the arrests were lawful, whether the warrant and subsequent search were lawful, and whether the investigation and continued bail amounted to disproportionate interference with article 8 rights.

1. Arrests. Applying Hayes v Chief Constable of Merseyside [2011] EWCA Civ 911 and the approach in O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286, the court formulated four questions: whether the officer actually suspected an offence; whether a reasonable person with the officer’s information and an accurate understanding of the law would have suspected it; whether the officer actually believed arrest was necessary for prompt and effective investigation; and whether that belief was objectively reasonable.
2. Suspicion is distinct from the evidential and public-interest tests for prosecution. The officer could rely on reliable intelligence, including intelligence from informants, viewed in its surrounding context. The intelligence that Mrs Fitzpatrick was attending prison to obtain Ahmed’s signature on conveyancing documents, together with the other information known to DC Miller, gave rise to actual and reasonable suspicion under sections 328 and 330 of the Proceeds of Crime Act. The same conclusion applied to Mr Wilkey after his admissions concerning the visit and the Power of Attorney.
3. The arrests were necessary to secure documents, prevent communication with others, preserve evidence, and permit prompt and effective interviews. A voluntary interview would not necessarily have been equally effective. The officer’s discretion remained, but was substantially subsumed within the statutory test. Any additional Wednesbury review would not alter the result.
4. Search warrant. There was no sufficiently grave defect on the face of the warrant raising clear doubt about the magistrate’s jurisdiction. Any special-procedure application would in any event have been granted in the interests of justice. There was no malice in procuring the warrant. The use of sections 50 and 52 of the Criminal Justice and Police Act 2001 was an appropriate means of dealing with material that could not practicably be examined at the premises, although material outside the warrant’s scope should not have been seized.
5. Section 32 of the Police and Criminal Evidence Act 1984 independently authorised a search of premises following Mr Wilkey’s arrest there. The continued investigation and bail did not constitute disproportionate interference with article 8 rights, given the complexity of the investigation and the need for independent review of potentially privileged material. All claims failed and judgment was entered for the defendant with costs.

First-instance judgment. The judgment states that all claims failed and that judgment was to be entered for the defendant with costs.