08 Dec 2016 Posted in Criminal Law Investigation Legal Argument Magistrates Court 

What Right do the Police have to enter my Home?

Nicholas Wragg Posted by Nicholas Wragg, Solicitor & Advocate, Criminal Law

What Right do the Police have to enter my Home?

Nicholas Wragg of Mowbray Woodwards recently successfully defended Mr P at Bath Magistrates Court where he faced trial for two assaults on police constables and one of obstructing a police constable.

The prosecution’s case was that police officers attended an address where a wanted person was thought to be present.  The police went into the property and through to the back garden where they encountered Mr P and another person who they wanted to arrest.  Mr P knew that the person who was to be arrested was extremely upset and asked the police to give him a little time to calm this person down.  The police refused and threatened Mr P with arrest himself for obstruct unless he moved away immediately.  Mr P was adamant that he was merely assisting police officers by calming the person down and suddenly police put their hands on him and attempted to arrest him.  Mr P strongly denied any assault on a police officer in the execution of their duty and or obstructing police whereas three police officers provided statements that he had.  The matter was listed for trial.

Mr P sought private representation from Mowbray Woodwards and it became immediately apparent that there was an issue in respect of the rights of the police officers to enter the house. 

During trial one of the officers gave evidence that they had been permitted into the premises whereas another officer indicated that they had entered the premises relying on powers given by section 17 of the Police and Criminal Evidence Act 1984.  Whilst Mr P was unable to give evidence of how the police gained entry into the property as he was sat in the back garden, two female witness indicated that a female police officer had been standing at the door and when it opened she pushed her way in stating that she needed to arrest a person on the premises for breach of bail conditions.  Both female witnesses gave a strong and consistent account maintained under cross-examination.  The female police officer indicated that when she arrived police officers were already in the back garden whereas a male officer indicated that he attended at the same time as the female officer.  The female officer had given a statement pointing out that the other officers had been invited onto the premises, admitted in open court that this was speculation. 

Officers intending to arrest for breach of bail conditions, have no right under section 17 to enter premises.  If they are invited into the premises this is permissible but they should seek the consent of a person entitled to grant entry and that consent should be obtained in writing.  Neither police officer at court knew that they should obtain consentIn order to enter a property without consent to arrest somebody for breach of a bail condition a police officer must seek a warrant from the court.  This is time consuming and one cannot imagine anything more frustrating than police officers turning up at a door wanting to arrest someone for breach of bail conditions and finding that the person entitled to grant entry refuses. 

In these cases, and it is suspected in others, police officers turned up at the door assuming body language and a manner consistent with them having a right to enter.  On this occasion the female witnesses who answered the door assumed from such body language and manner that the police officers had every right to march into the property and said nothing when they did.  Had the officers complied with Code B of the Police and Criminal Evidence Act, they would have informed the person entitled to grant entry that they wished to be invited onto the premises to make the arrest and would then ask whether the person was prepared to provide consent in writing.  Of course, seeking such written consent has the unfortunate effect of revealing to the person entitled to grant entry that they have a choice in the matter and that, one has to conclude, is the reason why the author has never in all of his years of practice seen a written consent. 

There are powers afforded to the police to enter premises under section 17 for other matters such as arresting persons for an indictable offence, section 4 of the Public Order Act 1986, for persons suspected to be driving when under the influence of drink or drugs contrary to the Road Traffic Act 1988 etc.

In this case the magistrates’ indicated that they could not be satisfied that they were sure that the police had consent to enter the property and accordingly whether the police officers were trespassing.  It is clear from the case law (Davis v Lisle [1936] 2 KB434) that any action amounting to an assault, battery, unlawful arrest or trespass on a property takes the officer outside the course of his duty.  Given that the police officers in this case had admitted to going to the back garden and taking hold of the defendant to arrest him for an offence of obstructing police (preventing them from arresting the other person at the property) then, as they were not acting in the course of their duty, their laying hands on the defendant amounted to an assault. 

The defendant has been acquitted of all charges and is of course delighted with the result.

On the related topic of police exercising their powers to enter a property in order to effect an arrest for an indictable offence, which is permitted, under section 17(1)(B) of the Police and Evidence Act 1984 the author often encounters cases where police officers have entered a property to arrest for an indictable offence (such as actual bodily harm) therefore not requiring permission to enter.  By the time the matter gets to charge the person is charged with a summary offence (common assault for example).  It seems clear that police officers are avoiding the trouble of securing a warrant from a magistrate by generously interpreting whether an offence is indictable rather than summary.  

Note that as of 31 March 2017 the law has been changed. Section 72 of the Policing and Crime Act 2017 fills this gap by extending the power under section 17 of PACE to enter and search premises for the purpose of arrest to include powers to arrest persons if they fail to comply with the terms and conditions of their bail whether before or after charge.

Nicholas Wragg is a specialist Advocate, appearing in both the Magistrates and Crown Court. To make an appointment please call 01225 485700 or email hello@mowbraywoodwards.co.uk

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Nicholas Wragg

Nicholas Wragg

Solicitor & Advocate, Criminal Law

01225 400666

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