Continued Detention Without Reasonable Suspicion Held To Be Unlawful

In a significant decision, the Court of Appeal has recently found that continued detention of an individual once there is no longer any reasonable suspicion that they have committed an offence, is a breach of Article 5 of the European Convention on Human Rights. This is a major step away from the previous position where the police had protection at common law if a delay in their investigation led to prolonged detention.

Zenati v Commissioner of Police of the Metropolis and Crown Prosecution Service [2015)

The Facts

  • This is an appeal of a decision to strike out a claim for a declaration and damages for breach of Article 5 of the European Convention on Human Rights (ECHR) and false imprisonment.
  • The Claimant is a national of the UK and Libya and holds both a British and Libyan passport. Following his arrest for a racially aggravated public order offence on 7 December 2010, he produced his British passport. The Police felt this had certain anomalies causing them to suspect it was counterfeit. He was therefore charged with offences under the Identity Cards Act 2006 and was remanded into custody on 10 December 2010.
  • The CPS requested a more comprehensive examination of the passport by 24 December 2010 however the Police did not receive this request until 31 December 2010. The passport was then forwarded to the National Document Fraud Unit (NDFU) on 13 January 2011, who in turn informed the Police that it was genuine on 19 January 2011.
  • At a case management hearing on 4 February 2011, the CPS were granted 14 days to obtain confirmation from the NDFU of whether the passport was a forgery, having asked for 28 days. No mention was made of the information already given to the Police by the NDFU. At 16:38 the same day an email was sent from the Police to the CPS informing them the examination had already taken place which had confirmed the document was genuine. This was forwarded to the allocated Prosecutor on 7 February 2011 who then reviewed the file. The Claimant was eventually granted bail on 9 February 2011.

The Decision

  • The Claimant’s case that his continued detention after 19 January 2011 was in breach of Article 5 (1)(c) of ECHR was reinstated. This requires that an individual can only be detained if there is a reasonable suspicion that they have committed an offence or it is considered necessary to prevent his committing an offence and fleeing after doing so. As of 19 January 2011 the reasonable suspicion had been dispelled and so the detention was unlawful.
  • Arguably the Police were also responsible for a breach of Article 5(3) of ECHR between 19 January 2011 and 9 February 2011 in that the detention was unreasonably long as a result of their failure to conduct the proceedings with “special diligence.” This claim was therefore also restored. However this does not impose a general duty of care on the police and CPS and applies only in circumstances in which a person is detained in custody before trial.
  • The Claimant did not have a claim for false imprisonment as the detention was not without lawful authority having been justified by the court deciding to remand. Where imprisonment is effected through judicial proceedings, liability for false imprisonment virtually disappears. It was irrelevant that the Court was misled as to the true facts as it was held that the court still exercises its independent judgement as to whether or not an individual should be detained.

If you have any questions regarding this or any other legal matter, please contact Katie Masca.