The legal basis for lockdown
According to government figures, an estimated 1.6 million women and 786,000 men in England & Wales experienced domestic abuse in the year ending March 2019. Senior Police Officers have warned about the anticipated rise in domestic abuse incidents during ‘lockdown’ and Kingsley Napley has published a blog here about how police may respond to incidents of domestic abuse in the current climate. With more and more interactions between police and the public now occurring at the threshold of a private premise, members of the public and the police may want to remind themselves of the rights and powers they have during such an encounter.
In 1760, William Pitt (the Elder) made a famous declaration of the right an Englishman had over his home:
The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail, its roof may shake and the wind may blow through it. The rain may enter. The storms may enter. But the King of England may not enter. All his forces dare not cross the threshold of the ruined tenement."
In 2020, one’s home is still, in some respects, one’s castle; police are, and ought to be, very cautious when seeking to gain entry to enter a person’s house or other private premise without permission.
The circumstances under which the police may lawfully enter a house or other private premise, without the permission of the owner/occupier and without a court-ordered warrant, are set out in Section 17 of the Police and Criminal Evidence Act 1984 (‘PACE’) and in common law. These are distinct from other statutory powers to enter a premise and to search for and seize property, for example, under s.18 and s.32 of PACE. S.17 (unless stated) and common law provide a power of entry:
Except for entry to save life and limb or prevent serious damage to property, the powers of entry conferred by s.17 are only exercisable if the officer has reasonable grounds for believing that the person they are seeking is on the premises.
Before COVID-19, the police and the CPS pursued a proactive approach towards domestic abuse. Police operated a ‘positive arrest policy’, whereby the starting point for officers to consider was that an arrest would be necessary when dealing with allegations of domestic abuse, unless the officer could justify that it was reasonable and proportionate not to make an arrest. A hypothetical example of this how ‘positive arrest’ policy might operate is where a concerned neighbour calls police after hearing shouting and screaming coming from next door. Police arrive and it emerges there has been a verbal argument between two parties, where the victim is not willing to make a formal allegation and the suspect agrees to be escorted off the premises by police and not return for an agreed period of time, to allow both parties to calm their tempers. In this instance, police would arguably be able to justify not choosing to arrest that individual under the circumstances and resolve the situation by other means.
Given the concerns about the transmission of COVID-19 and the added strain that the government’s measures have put on to police forces that were already struggling with resources and staffing levels, it remains to be seen whether the police may adopt a more pragmatic approach towards dealing with allegations of domestic abuse, or whether they will maintain their proactive approach of arrest and/or prosecution.
Consider a situation where the police are called to a domestic argument and learn that there is an occupant who is elderly, or has a pre-existing health condition, or who is self-isolating under the belief or suspicion that they have contracted the virus. Police would be faced with another challenging decision. Will the risk that a police officer transmits COVID-19 into a premises, that they expose themselves and their colleagues to infection, or that they are forced to extract a potential carrier of the virus and transport them to a place of safety or to custody, be viewed as proportionate and necessary given the circumstances? See our related blogs on the topic of COVID-19 and managing health and risk whilst in police custody here.
On the one hand, police may seek to resolve issues through means other than arrest, for example, escorting them off the premise or through the use of Domestic Violence Protection Orders (DVPOs). DVPOs are a civil measure that may be used to put in place protective measures in the immediate aftermath of a domestic abuse allegation, where there is insufficient evidence to charge a suspect, to provide protection to a complainant via bail conditions (e.g. that the suspect will breach their bail conditions if they visit the complainant’s address).
On the other hand, police may be increasingly reluctant to remove individuals from a premise during ‘lockdown’, by imposing bail conditions or escorting them off the premises. An individual subject to DVPO bail conditions to not to return to their home may find themselves effectively rendered homeless, as they can expect to find it very difficult to find another household willing to take them in, especially if they are have, or are suspected to have, COVID-19. Police may face difficult questions if they are seen to be removing a COVID-19 carrier from their home and dispersing them into the local community, even temporarily.
If police feel they are unable to leave the suspect at home, in case the behaviour escalates once they depart to take the next call, they may be more inclined to arrest suspects and take them into police custody, where their safety and potential risk as a transmitter of COVID-19 can be more effectively controlled.
On 2 April 2020, the National Police Chief Council (NPCC), in conjunction with the Crown Prosecution Service (CPS), The Law Society and the Criminal Law Solicitors’ Association, published an ‘Interview Protocol’ that is designed to assist investigators and prosecutors in deciding whether suspects should be interviewed (in custody or elsewhere) as part of a police investigation during COVID-19. It explains that the pressures being placed on the number of police officers, prosecutors and defence solicitors who are available for work will require careful consideration of what new offences are “fed into the system” and how those offences are progressed. This Interview Protocol references, in Annex C, the ‘CPS Interim Charging Protocol’ published by the NPCC and the CPS on 1 April 2020, which we have blogged about here. This charging protocol establishes a three-tier categorisation of ‘seriousness’ when assessing how a case is to be investigated by the police. Categorising a case will necessarily involve a decision about whether an interview in police custody is required.
The ‘Criminal Procedure and Investigations Act 1996’ mandates that investigators must pursue “all reasonable lines of enquiry” into a criminal allegation. The interview protocol recognises that interviews are in most cases a “reasonable line of enquiry”. However, with current public health concerns, “interviews may need to be postponed or even dispensed with”. Where it is not possible to conduct an interview with all required parties present, in accordance with social distancing rules, then the decision flowchart (Annex A) and the alternative of a written statement given under caution in response to a list of questions provided by the interviewing officer (Annex B) should be considered. Annex A provides a flowchart to guide decision-makers when considering Level A and B cases, as to whether an interview ought to be completely virtual, partially virtual or attended in person by all parties. The parties to this interview protocol have signed an agreement that the video-link facilities available under Code C of PACE to police officers and interpreters should also be available to defence representatives. Legal advice for suspects should take place whenever possible over the telephone (for legal advice) and by video link for interviews with suspects.
In exceptional circumstances, and only once Annex B has been considered, a charge without interview may be considered. For Level C cases where suitable arrangements for the interview cannot be made immediately, suspect(s) should be bailed or released under investigation to allow for an interview at a later date (with some exceptions).
Police officers are used to having to make split-second decisions in highly pressurised circumstances, but the added complication of COVID-19, their duty of care to the public and to individuals under their control, and the fact that they must been seen to be observing social-distancing rules as keenly as they enforce them, may leave police unsure how to proceed when they find themselves knocking at the door.
For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.
John Harding acts as Legal Counsel in the criminal litigation team and represents individuals in relation to all areas of crime including police station advice, specialising particularly in relation to allegations of serious assaults, offences of a sexual nature and those relating to child abuse/abuse of positions of trust.
This blog has been co-authored by Tom Surr, Head Paralegal in our Criminal Litigation Team.
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