Mental Health - April 2010

Can you smell gas?

It might be possible to enter premises without a warrant, but ‘welfare concerns’ aren’t a good enough excuse.

Although it may be possible under PACE to enter premises so as to protect people or property, that won’t be so where a constable’s only concern is welfare. That is the lesson of a recent case, in which a man who spat at one constable and head-butted another was found not to have assaulted them in the execution of their duty (Syed v DPP, Divisional Court, 13 January 2010).

The relevant provision is section 17(1)(e) of the Police and Criminal Evidence Act 1984, which says that a constable may enter premises for the purpose, amongst other things, “of saving life and limb or preventing serious damage to property”. Last year, the Divisional Court said this power would cover protecting someone from themselves, as well as from someone else, but that in ‘life and limb’ cases, it can only be used where a constable reasonably believes serious bodily injury is imminent (Baker v CPS [2009] EWHC (Admin) 299).

Here, the situation was not sufficiently serious to justify the use of PACE. Two constables had attended Mr Syed’s house following reports of a disturbance. He claimed to have been arguing with his brother, but became evasive when questioned further. The constables told Mr Syed that under section 17, they could enter his house if they were in fear for the welfare of anyone there. Mr Syed did not accept that this was so, and he reacted in the way that led to the charge.

The magistrates convicted Mr Syed, but the Divisional Court took a different view. It said section 17(1)(e) was clear: there would be a right of entry without warrant only where something serious had occurred or was in prospect. Here, there was no sign that anyone on the premises had been injured (or any property damaged) and Mr Syed’s explanation had not been contradicted. The threshold applied by the constables – concern for welfare – was too low. When entering the premises, therefore, they had not been acting in execution of their duty, and whilst Mr Syed might have acted improperly, his conviction could not be allowed to stand.

Though colourful, these circumstances might not be typical. Certainly, the section 17 power is sometimes invoked in the case of people with mental disorder, where a warrant has not been obtained under section 135 of the Mental Health Act and, because all concerned are on private premises, section 136 will not permit an arrest. Understandable though it may be in such circumstances for constables to ‘smell gas’, they should ensure before invoking PACE that what they wish to guard against really is serious harm.

The full judgment in this case may be found here.