Browne v Commissioner of Police of the Metropolis

Police use of force to conduct a drugs search is unlawful where the statutory information required before the search is not given. Under Police and Criminal Evidence Act 1984, section 2, the officer must take reasonable steps to provide the required information unless genuine urgency justifies a different course. Failure to comply invalidates the search and the use of force to effect it. Force must also be objectively reasonable and necessary in the circumstances. A mistaken belief that a person is carrying or swallowing drugs does not justify force without supporting evidence. Where a serious injury occurs during an arrest, the defendant must provide a credible explanation for its causation. Resistance after unlawful and excessive force has been used does not necessarily amount to contributory negligence.

The claimant brought a first-instance claim in assault and battery against the defendant police authority after suffering a severe fracture of his right tibial plateau during an incident in which he was restrained, searched and arrested. Claims in negligence and under the Human Rights Act 1998 were not pursued.

The defendant relied on the officers’ statutory and common-law powers to search, arrest and use reasonable force. The central issues were whether the requirements of section 2 of the Police and Criminal Evidence Act 1984 had been met, whether the force used was justified and reasonable, how the injury had been caused, and whether the claimant was contributorily negligent.

1. Claim succeeded. Judgment was entered for the claimant in the sum of £108,491, with interest to be agreed.
2. Under section 23(2) of the Misuse of Drugs Act 1971, the police may search and detain a person where there are reasonable grounds to suspect possession of a controlled drug. Before exercising that power, the officer must comply with section 2 of the Police and Criminal Evidence Act 1984. The requirement is mandatory.
3. The officer had not taken reasonable steps to give the claimant his name, the police station to which he was attached, the object of the search or the grounds for it. There was no particular urgency. The search was therefore unlawful, and the force used to effect it was unlawful.
4. Section 3 of the Criminal Law Act 1967, section 117 of the Police and Criminal Evidence Act 1984 and the common-law power to use force did not justify the conduct. The officer had no reliable basis for believing that the claimant was trying to dispose of or swallow drugs. The force used inside the shop was excessive and unreasonable.
5. The claimant had not deliberately ignored a clear command to stop and had not resisted arrest before the force was applied. The officer used his leg or knee to block or forcibly bend the claimant’s leg and tackled him towards the floor while twisting him in a headlock. That manoeuvre caused the fracture.
6. Following Sheppard v The Secretary of State for the Home Department [2002] EWCA Civ 1921, the serious fracture sustained during the arrest placed an obligation on the defendant to provide an explanation for how it occurred. The explanation that it happened accidentally outside the shop was rejected.
7. There was no contributory negligence. Any resistance after the claimant had been subjected to unlawful and excessive force did not contribute to the injury. Aggravated damages of £5,000 were awarded because the officer had acted in a high-handed and oppressive manner.

Not stated in the judgment.