Sofian Zenati v The Commissioner of Police of the Metropolis and the CPS

The Court of Appeal allowed the claimant’s appeal and reinstated his claim under Article 5 of the Human Rights Act 1998.

Executive summary

The Court of Appeal allowed the claimant’s appeal and reinstated his claim under Article 5 of the Human Rights Act 1998. In allowing the appeal, the court has established a significant new approach in this area. The court found:

  1. Under Article 5(1)(c) the requirement for ‘reasonable suspicion’ when arresting a person applies not just to the moment of arrest but throughout the period of detention, including after the court has remanded in custody. Accordingly, if a person remains in custody in circumstances where there is no longer reasonable suspicion that they have committed an offence, that will breach Article (5)(1)(c);
  2. Article 5(3) imposes an obligation on the court to act with ‘special diligence’ in deciding whether a person should remain in custody. If the court fails to exercise special diligence because it has not been given necessary information by the police or CPS, or because there have been delays by the police or CPS in the investigation and preparation of the case, then if that results in a person remaining in custody for longer than would otherwise be the case, a claim against the police or CPS for a breach of Article 5(3) may be arguable.

Background

On 7 December 2010, the claimant was arrested for a racially aggravated public order offence. He pleaded guilty and was fined.  No claim was made in relation to his initial arrest and detention.

He was subsequently charged with offences contrary to the Identity Cards Act 2006 because it was believed he was in possession of a fake passport. He was refused bail in relation to this offence and a further bail application was refused by Camberwell Magistrates Court on 10 December 2010.       

On the same day, the CPS completed a “file build request form”.   The officer in the case, PC Smith, was asked to arrange a more comprehensive examination of the passport by 24 December.  This request was not forwarded to PC Smith until 31 December. PC Smith then contacted the National Document Fraud Unit (NDFU) at the UK Border Agency but the passport was not delivered to the NDFU until 13 January 2011.    On 19 January, PC Smith was told by the NFDU that the passport was genuine.

There was a plea and case management hearing on 4 February when the claimant pleaded not guilty to the passport offence.  The CPS informed the judge that they needed to obtain a statement to confirm that the passport was a forgery. No mention was made of the information obtained from the NDFU.  There was discussion about bail if the claimant could give details of a residential address acceptable to PC Smith. He could not.

On the same day, PC Smith e-mailed the CPS that the examination had been completed “some time ago” by the NDFU and that the document was genuine.  At the next bail hearing on 9 February that fact was revealed and the claimant was granted bail. 

The strike-out

The claimant initially brought a claim for a judicial review, but permission was refused and the claim was sent to the county court as a claim for false imprisonment and breach of Article 5.  

A joint application to strike out the claim and/or for summary judgment was heard by HHJ Mitchell. The application was successful, the judge striking out the claim for false imprisonment on the basis of the claimant’s remand in custody by the magistrates. The Article 5 claim was also dismissed as neither the Commissioner nor the CPS had an obligation of ‘special diligence’ as the claimant had contended and further there was no allegation that either had acted in bad faith. 

Court of Appeal

The claimant argued there was a breach of Article 5 because;

1  detention from 19 January 2011 until his release on 9 February 2011 was in breach of Article 5(1)(c), and

2  detention from 10 December 2010 to 9 February 2011 was unreasonably long and in breach of Article 5(3) as the defendants had failed during this period to act with ‘special diligence’ in investigating the alleged offence. 

In addition, he claimed false imprisonment for his detention from 19 January until 9 February 2011.

The defendants argued they could not be liable under domestic law for false imprisonment. The court found that as a matter of law, the claim for false imprisonment was bound to fail as the claimant was not detained by the police or the CPS. There was no compelling justification for a change to the common law by bringing it into line with Article 5.

However, on the claimant’s pleaded facts (assumed for the purposes of any strike out application to be true), the police ceased to have a reasonable suspicion of the offence as early as 19 January 2011 when PC Smith received information from the NDFU that the passport was genuine.  The earliest time when the CPS was made aware of this was 4 February 2011, shortly after the plea and management hearing that day. The court held that it was arguable that by failing to inform the CPS as soon as possible after 19 January of the results by the NDFU, the police had caused a breach of Article 5(1)(c).

Short of that, the Court of Appeal also found it arguable that by failing to inform the court of the position at the hearing on 4 February, the police were responsible for a breach of Article 5(1)(c) between 4 and 9 February 2011.

The court accepted the defendants’ arguments that the obligation of ‘special diligence’ is imposed on the courts and not on authorities such as the police and CPS. However, the court found it at least arguable that the investigation was conducted in a dilatory fashion and without due expedition, leading to the court failing to conduct the proceedings with ‘special diligence’. 

The result was that the Article 5 claim was reinstated and remitted to the county court for determination. An appeal to the Supreme Court against that decision is being considered.  

Comment

The Court of Appeal’s findings in relation to Article 5 signal a new approach with the potential for significant repercussions in cases where the police have previously enjoyed protection at common law. 

On the basis of the court’s findings, any person remanded in custody by a court and who can point to some delay in the investigation and prosecution process may have an arguable claim under Article 5. That would apply even where the delay arises within remand periods authorised by the courts.

Lord Justice Lewison observed that the facts must be considered “realistically and in the round”. He commented that the court must not impose unrealistic burdens on the police or the CPS and that whether the claim ultimately succeeds will depend upon a detailed investigation to include:

  • the competing demands on the resources of both the police and the CPS;
  • whether the NDFU would have produced its report in the timescale if the request had been made earlier;
  • the intervention of the Christmas holiday period;
  • how quickly a bail hearing could have been arranged once the truth was known. 

In addition, the Master of the Rolls noted that consideration will also be given to the extent to which the claimant himself was responsible for the failure to be granted bail on 4 February 2011.

Although individual cases will need to be determined on their own facts, subject to any reversal in the Supreme Court, this decision opens the door to a host of claims under Article 5 tantamount to a duty to investigate and prosecute with diligence.  

Weightmans acted on behalf of the Commissioner in this case . For further information about Weightmans or to discuss any of the issues in this update, please contact Martin Forshaw, Partner, on 0151 242 7949 or email martin.forshaw@weightmans.com

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