False Imprisonment and mentally unwell detainees

Summary

The Chief Constable of Merseyside Police has successfully defended an appeal to the High Court which followed the dismissal of the claimant’s claim for false imprisonment, assault, and a breach of her Article 3 ECHR right brought under section 6(1) of the Human Rights Act 1998.

The claimant was suffering with mental illness at the time of her arrest and detention, and the case focused on the decisions made to take the claimant into police custody rather than immediately taking her to a mental health facility, and her subsequent treatment whilst in police custody.

The judgment of Mr Justice Ritchie regarding two distinct issues in the case is likely to be of interest to both police forces and police lawyers alike.

Background

On 12 March 2016 the claimant was arrested following calls to the police indicating that she was attacking her mother. Upon arrival at the address, the attending officers saw the claimant attempting to self-harm. The claimant then attacked the officers who had to physically restrain her. She was arrested at 8.15pm for breach of the peace and assaulting a constable.

Several days prior to the incident on 8 March 2016, the claimant had been certified as in need of detention under the Mental Health Act 2003 by two psychiatrists. Due to a lack of inpatient beds, she was later released. On 12 March 2016 the claimant’s mother had informed the attending police officers that she was mentally unwell, but the full details were not known to the officers.

Upon arrival at the police station the claimant’s detention was authorised and she was placed on a period of rest and observation due to a concern that she may be intoxicated. She was detained in a cell overnight and released into the detention of the mental healthcare authorities at around 5.24pm in the following day.

During her detention, the claimant attempted to bite a police officer whilst being booked in. After being carried to her cell, the claimant’s clothes were then cut off and she was provided with a gown. During this process, the claimant struggled and bit the inner thigh of one of the detention officers (“DON”). The claimant was then struck by DON several times to her face to get her to release the bite. DON asserted that that the claimant also then grabbed her left ankle, causing DON to punch the claimant in the arm to get her to release her grip.

The claimant’s detention was reviewed at 2.23am by the Custody Inspector and continued detention was deemed necessary ‘in order to secure and preserve evidence’. The Inspector considered and noted on the custody log that the claimant was still in her rest period at this time, that she was potentially intoxicated, and that she would need a mental health assessment after her rest period.

The detention was once again reviewed at 9:59am by a different Custody Inspector who again authorised ongoing detention ‘in order to preserve evidence and obtain further evidence by questioning’. It was noted that the claimant was at that stage likely to become violent and that her state of mind was likely to prevent understanding of any face-to-face discussion.

Prior to this later authorisation, the claimant had been examined by a mental health criminal justice liaison practitioner at 8.30am, who had decided that she needed to be admitted to a mental health hospital but did not consider that there was a medical emergency. A second practitioner then arrived at around 3pm and was satisfied that the claimant needed to be sectioned under the Mental Health Act, but again found there was no medical emergency. The claimant was eventually transferred to a mental hospital at around 17.24 hours on 13 March 2016.

The claim that was subsequently brought alleged:

• The arrest of the claimant was unlawful as the arresting officer did not have reasonable grounds to suspect an offence had been committed.
• Even if there were grounds to arrest, the entirety of the claimant’s detention was still unlawful as the claimant should have been immediately taken to a mental hospital rather than a police station.
• In the alternative, that it should have been evident upon arrival at the police station when the claimant was seen by the custody sergeant, or during subsequent reviews, that the claimant was unfit to be detained and should have been transferred to a mental hospital sooner.
• The claimant was assaulted at various points during her arrest and detention with unreasonable force used.
• The treatment of the claimant during her arrest and detention was inhuman/degrading in contravention of her Article 3 ECHR rights.
• The treatment of the claimant amounted to disability discrimination under the Equality Act 2010.

Liability was denied in full. The Chief Constable argued that the arrest was lawful as there were clear grounds to arrest, and there was no clear evidence regarding the extent to which the claimant was suffering mental health issues as opposed to potentially being intoxicated. It was reasonable therefore to place the claimant on a rest period overnight and monitor her, with the custody officers following the correct protocols throughout in terms of having the claimant assessed by mental health practitioners.

It was further argued that there was no evidence that the claimant could have been transferred out of custody to a mental health institution any sooner, and the custody officers were not at liberty to release the claimant from custody due to their duty of care and Article 2 ECHR obligations, noting it was highly likely the claimant would harm herself or others if released.

First instance decision

The claim was heard by Recorder Grundy sitting with a jury at a 12-day trial. The claimant lost on all issues and the claim was dismissed in full.

Appeal

An appeal was subsequently made including 12 separate grounds of appeal. Mrs Justice Heather Williams KC only granted permission to appeal with regards to two issues:

Issue 1

During the trial the claimant requested a question be put to the jury about whether or not the claimant did grab the ankle of the detention officer (DON). It was submitted that the claimant did not accept in her evidence that she did grab DON’s ankle, and this was therefore a factual dispute for the jury to resolve. If the claimant was correct in this regard and there was no ankle grab, the subsequent punches could not have been justified and must therefore constitute unreasonable/excessive force.

The defendant argued that there was in fact no conflict of evidence on this point for a jury to resolve -this allegation had never been specifically pleaded and whilst the claimant did not accept grabbing DON’s ankle, she also admitted she did not have any memory of the events surrounding the alleged ankle grab. Whilst DON did not give oral evidence at the trial, her written statement confirmed her ankle was grabbed and this was the only positive evidence on the issue.

Recorder Grundy refused to put the issue of the ankle grab to the jury and determined that the claimant did grab DON’s ankle and that the subsequent use of force was reasonable.

Permission to appeal was granted to consider this issue further and whether Recorder Grundy had erred in his approach.

Issue 2

The claimant asserted that the decisions to continue her detention at 2.23am and 9.59am under section 37(3) of PACE (i.e. to preserve evidence and obtain further evidence by questioning) were unlawful. She asserted that there was no prospect that she could be properly interviewed because of her mental state and the psychosis she was experiencing. The grounds to detain must therefore have been unreasonable and unlawful.

Recorder Grundy had found that both decisions to authorise continued detention at 2.23am and 9.59am were lawful. It was common ground between the parties that the Recorder could only have declared the decisions to be unlawful if they were unreasonable in the Wednesbury sense – i.e. that no reasonable custody officer would have made such a decision in the circumstances. 

Appeal outcome

Mr Justice Ritchie, sat in the High Court, upheld Recorder Grundy’s judgment findings, except for one point.

With regards to Issue 1 Ritchie J provided guidance on the issue of when it is appropriate to leave questions to a jury in a civil claim, noting the general position that issues of fact are for the jury to determine, and the issues of law are for the Judge.

The authorities on this issue, including Balchin v Chief Constable of Hampshire [2001] EWCA Civ. 538, require a Judge to consider the following three steps when deciding whether an issue should be left to a jury:

1. A pleaded issue of fact - is there a relevant issue of fact between the parties identified in or arising from the pleadings? If not, there is nothing for a jury to determine.

2. Not agreed or uncontradicted – by the end of the evidence, is the identified relevant issue of fact no longer in issue because it is agreed or because there is uncontradicted evidence determining it? If so, it is no longer an evidential issue and therefore no need for the jury to determine.

3. A real issue on the evidence - by the end of the evidence, is there a real conflict of evidence relating to the identified relevant issue of fact? If so, then it must be left to the jury. However, if no reasonable jury could decide the issue in any other way than the obvious way, so it would be perverse and overturned on appeal if the jury decided the issue any other way, then there is no real issue to be left to the jury.

In relation to the first step, Ritchie J considered that the pleadings, whilst vague, were sufficient to permit the ankle grab being raised as an issue.

For the second step, Ritchie J noted that the ankle grab was not agreed by the claimant in her evidence, however, she also agreed she could not recall what happened and DON’s positive evidence regarding her ankle being grabbed was uncontradicted. The fact that the claimant had not accepted her ankle was grabbed was not sufficient of itself to create a true conflict.

As such, it was not necessary for the Recorder to have considered the third step, and Recorder Grundy was therefore right to have refused a question to the jury on this issue. Ritchie J provided his thoughts on step 3 nonetheless, stating that in his view it would have been perverse had the jury been asked this question and found that the claimant did not grab DON’s ankle in the face of the uncontradicted evidence.

Ritchie J therefore held that Recorder Grundy’s decision on this issue was lawful.

With regards to Issue 2, Ritchie J found the first authorisation at 2.23am to be reasonable and upheld the decision of Recorder Grundy. The Custody Inspector was entitled to wait for the rest period to finish, and it remained possible that the claimant might either sober up or calm down. His decision to detain was not Wednesbury unreasonable. 

However, by 9:59am the position was different. The second Custody Inspector officer should have been aware by this stage that:

• The claimant had not recovered during the rest period and was still obviously disconnected from reality.
• Formal confirmation had been received that two consultant psychiatrists had sectioned the claimant 2-3 days earlier in PICU (intensive mental health care).
• The mental health practitioner who examined the claimant at 8.30am had tried to speak to the claimant but had not been able to due to her disconnection from reality and had therefore determined that she should be sectioned.

As such, Ritchie J was unable to understand how there could have been any realistic hope that an interview with the claimant would be possible. He noted that the entry in the custody log was brief and appeared to be word processed. He found that this decision was irrational and unlawful.

The implication of overturning Recorder Grundy’s decision on this issue meant that the claimant’s detention from 9.59am onwards, until she left custody at 5.24pm, was unlawful.

Nominal damages

Whilst the appeal had succeeded on this particular ground the claimant was only awarded nominal damages for this period of unlawful detention, following arguments raised by the defendant that:

• Even if the claimant was not lawfully detained under PACE, she needed to be kept in a place of safety and the police were entitled to detain her under their common law powers. It was right and correct to detain the claimant until she was transferred for treatment and would have been dangerous to her and others if the police had released her.
• Whilst there was a suggestion that the claimant could have been transferred to a mental health institution sooner where her distress would not have been as severe, there was no evidence that the police could have obtained any faster authorisation for her to be transferred
• There was also no medical evidence to suggest her suffering was greater by remaining in a police cell. The claimant was unaware of her situation as she was detached from reality.

Ritchie J accepted these submissions and referred to Parker v Chief Constable of Essex [2018] EWCA Civ. 2788 in relation to this approach. He awarded the claimant nominal damages of £5.

Discussion

This case highlights the difficulties of dealing with a detainee who is mentally unwell.

Whilst most of the claimant’s detention was deemed to be lawful in this particular case, the nature of claim, where each and every PACE review was criticised by the claimant and closely analysed by the court, serves as a reminder of the need to ensure that PACE decisions are clearly and comprehensively recorded in a custody log. Automatically selecting standard wording such as “to secure and preserve further evidence including by questioning” may be insufficient without further elaboration, particularly in a case where mental health concerns have already been raised.

The decisions and notes from health care professionals, custody nurses, and mental health practitioners should be fully reviewed and considered at each PACE review. If a mental health assessment is required, steps should be taken to ensure that this is carried out as expeditiously as possible with the custody log updated accordingly.

Since the date of the arrest of the claimant on 12 March 2016 there have been notable amendments to the Mental Health Act 1983 (MHA). Whilst the police always had a power under section 136 of the MHA to remove a person who appears to be suffering from a mental disorder to a place of safety (if that person was in a public place), police officers are now entitled to keep a person at a ‘place of safety’. As a police station can constitute a place of safety (unless the person is under 18) this gives the police an express power outside of PACE to detain mentally unwell persons in custody pending the completion of any psychiatric assessments and transfer to a mental health facility.

This power is however subject to several conditions set out in the Mental Health Act 1983 (Places of Safety) Regulations 2017, meaning it can only be used where:

• the behaviour of the person poses an imminent risk of serious injury or death to themselves or another person
• because of that risk, no other place of safety in the relevant police area can reasonably be expected to detain them; and
• so far as reasonably practicable, a healthcare professional will be present at the police station and available to them

Again, it is important for custody officers to consider these criteria and record why they consider these conditions are met.

The Department of Health Guidance also emphasises that whilst a police station can potentially be used as a place of safety, the expectation remains that the person’s needs will most appropriately be met by taking them to a ‘health-based’ place of safety - a dedicated section 136 suite where they can be looked after by properly trained and qualified mental health professionals.

It remains possible therefore that false imprisonment claims might continue to be made on the basis that the above regulations and guidance have not been complied with, or that transfers from police custody to a mental health facility did not take place quickly enough.

However, the finding that only nominal damages would be appropriate in circumstances when a detainee could no longer legitimately be detained under PACE, but would have been detained in any event, should give some comfort to police forces.

The judgment also provides a useful reminder and summary of when it is, and is not, appropriate to allow questions to a jury in a civil case. Defendant practitioners may be wary of the unpredictability of jury decisions and should remain alive to the potential arguments that can be raised about the validity of proposed jury questions.

Close scrutiny of the pleaded case and careful consideration of written and oral evidence given during a trial is essential to determine whether there truly is a dispute of fact. If the evidence is not sufficiently in conflict, it may well be unsafe to leave a question to a jury. Just because a claimant may dispute a factual issue, does not automatically mean that a question to the jury will be required or appropriate. If the objective evidence in the case is clear and obvious and contradicts a claimant’s account, it can successfully be argued that there is, in reality, no issue to resolve and it would be unsafe to leave a question to a jury.