‘2. What happened on the10th June 2017 is broadly agreed, although there are some minor areas of divergence. At around 8pm Mr Andrews went to Morrisons, entered the store and made some purchases. He had driven there in his car which had his three dogs in it. As he left the store he spoke to the father of two young girls who were standing between that exit and where the car was parked close by. There was a brief discussion between them about the dogs. Mr Andrews went to the car. Shortly after he did so, the mother of the two young girls came out of the store and the father, with one of the girls, entered the store, leaving the second girl, aged 9, outside the store with the mother. Mr Andrews drove the car around the car park and then stopped the car directly in front of the remaining young girl. There was loud music emanating from the vehicle. He called loudly to the young girl “I’ve got my music loud and clear just for you.” He got out of the car and began to dance and shimmer It seems probable that this word ought to have been transcribed as ‘shimmy’. towards the young girl with his arms wide open asking her if she wanted to dance. The young girl smiled and began to move towards Mr Andrews. As she did so her mother walked over to the girl and put her arm around her daughter and said “No she’s fine, thank you”. It is suggested by the mother that as she put her arm around her daughter Mr Andrews repeated his invitation to the young girl to dance. However this is denied by Mr Andrews. After the mother had told Mr Andrews that her daughter was fine Mr Andrews then said “I’m just trying to have a bit of fun”. The mother says that this was said angrily. Mr Andrews accepts he said those words but denies that he did so in an angry manner. Mr Andrews then drove off. 3. The incident was reported to the police, who attended the scene. On the15th June 2017 PC Pullen and PC Robinson saw Mr Andrews in his car and PC Pullen arrested him on suspicion of attempted child abduction. … 5. The basis of his claim is that the arresting officer, PC Pullen, did not have reasonable grounds for suspecting that the claimant had attempted to abduct a child and that accordingly his detention was unlawful as it was contrary to sections 24 and 28 of thePolice and Criminal Evidence Act 1984 (PACE) and in breach of Article 5. If the arrest was unlawful then he asserts that any physical touching was an unlawful assault and that a search of his vehicle pursuant tosection 18 of PACE would be unjustified. He also asserts that all decisions or reviews by police officers relating to his continued detention were unlawful. 6. The defendant accepts that the onus of proving that the arrest was lawful and that there has been no breach of Article 5 rests on him.’
‘Arrest without warrant: constables (1) … (2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it. (3) … (4) But the power of summary arrest conferred by subsection (1), (2) or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question. (5) The reasons are— … (d) to protect a child or other vulnerable person from the person in question; (e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question; … (6) …’
‘18. The first question is whether PC Pullen suspected that an offence of attempted child abduction had been committed. This is a subjective test. 19. The offence of child abduction involves the taking or detention of a child so as to remove him from the lawful control of, in this case, a parent. An attempt to commit an offence involves the doing of an act which is more than merely preparatory to the commission of the offence. 20. I accept PC Pullen’s evidence that he did so. I accept that he had considered the information received in the morning briefing and had also considered the information in the Athena log and what was known about Mr Andrews. 21. The second question is whether there were reasonable grounds for that suspicion. This is an objective test. 22. Ms Morris submits that because it was still light, in a supermarket car park with members of the public about, which could be covered by cctv and because he was wearing a distinctive t-shirt with a car full of dogs, playing loud music and that no one suggests that Mr Andrews said to the girl “come with me” or anything to that effect, it cannot be said that there are reasonable grounds to suspect him of the offence and specifically that there were no reasonable grounds to suspect that his conduct was more than merely preparatory to the offence of child abduction. 23. In Parker v The Chief Constable of Essex[2018] EWCA Civ 2799 Sir Brian Leveson reiterated that the threshold for suspicion is a low one. He said: “The bar for reasonable cause to suspect set out in s24(2) of the 1984 Act is a low one. It is lower than a prima facie case and far less than the evidence required to convict … further, prima facie proof consists of admissible evidence, while suspicion may take account of matters that could not be put in evidence … suspicion may be based on assertions that turn out to be wrong … the factors in the mind of the arresting officer fall to be considered cumulatively”. 24. I find that there were reasonable grounds for PC Pullen’s suspicion: he had received a briefing when the incident had been discussed; he had read the Athena log which referred to Mr Andrews dancing towards a young girl with his arms open inviting her to dance; the log referred to a witness who considered that Mr Andrews was trying to coerce the young girl away from her mother; the mother had to intervene as the child was moving towards Mr Andrews; he had been informed during the briefing of Mr Andrews’ previous convictions which included an offence involving children; he had noted that Mr Andrews had returned to the area the girl was in having initially driven away. 25. The next questions are whether PC Pullen suspected Mr Andrews of committing the offence (subjective) and whether PC Pullen had reasonable grounds for that suspicion. 26. Given that the log records that the check on the vehicle matched that of the vehicle owned by Mr Andrews I accept PC Pullen’s evidence that he suspected that it was Mr Andrews who had committed the offence. For the reasons given at paragraph 24, I find that there were reasonable grounds for that suspicion. 27. For an arrest to be lawful it must also comply with s28(3) of PACE which provides: ..no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as is practicable after the arrest.’ 28. Mr Andrews accepts that he was informed that he was under arrest on suspicion of attempted child abduction and that he was told that the offence was said to involve a young girl and that it was said to have been committed at Morrisons at 8pm on Saturday, which was the10th June 2017 . 29. Notwithstanding this, Ms Morris submits that s28(3) is not met. 30. In Taylor v Chief Constable of Thames Valley Police[2004] 1 WLR 3155 the Court of Appeal in a case involving an offence of violent disorder held that the requirements of s28(3) are met if the arrested person is told what he is being arrested for and given the time and place of the alleged offence. At paragraph 38 of the judgment of the court Clarke LJ stated that there was no need to specify the precise way in which the offence was said to have been committed. 31. I am satisfied that Mr Andrews was informed of the ground for the arrest at the time of the arrest. 32. Finally, the person making the arrest must have reasonable grounds for believing that the arrest is necessary: s24(4) and s24(5) PACE. 33. I accept PC Pullen’s evidence that he considered it would be necessary for an arrest to allow a prompt and effective investigation and to protect vulnerable children. PC Pullen gave evidence that he considered that searches would need to be carried out, particularly of the vehicle and that Mr Andrews would need to be interviewed and that he considered a voluntary interview as not appropriate. He was also aware of Mr Andrews’ previous convictions. I am satisfied that he had reasonable grounds for believing that the arrest was necessary. 34. I find that the arrest of Mr Andrews was lawful. 35. Article 5(1)(c) provides that no one shall be deprived of his liberty save in the following cases: the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so 36. It follows from my finding that the arrest of Mr Andrews was lawful that I do not find that there has been a breach of his Article 5 rights in respect of his arrest.’
‘Was the authorisation of Mr Andrews’ detention by PS Bloomfield lawful? 37. When Mr Andrews was conveyed to the Great Yarmouth Custody Suite on the15th June 2017 he was brought before PS Bloomfield who authorised his detention. The grounds for detention are set out in the Custody Record as “I am authorising your detention as being necessary for the following purposes, To Secure Or Preserve Evidence, To Obtain Evidence by Questioning”. 38. S37 of PACE provides that a custody officer may authorise a person arrested to be kept in police detention if that officer has: … reasonable grounds for believing that the person’s detention without being charged is necessary to secure or preserve evidence relating to an offence for which the person is under arrest or to obtain such evidence by questioning the person … 39. PS Bloomfield’s evidence was that he would have considered the fact that the alleged victim was a child, that Mr Andrews did not have a fixed abode, that it was necessary to conduct a search and that it was necessary to conduct an interview with Mr Andrews. 40. I am satisfied that PS Bloomfield had reasonable grounds for authorising Mr Andrew’s detention. 41. In evidence Mr Andrews also stated that he had no criticism to make of PS Bloomfield. The reviews of detention 42. There were three reviews of detention prior to Mr Andrews being remanded in custody by the Norwich Magistrates’
‘Has there been a breach of Article 5? 57. I have addressed the issue of whether there was a breach of Article 5(1)(c) in relation to the arrest at paragraphs 35 and 36. 58. In relation to the detention of Mr Andrews Article 5(1)(c) provides that the detention must be: for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so 59. The claim relating to a breach of Article 5 extends beyond the period when the claimant was in police detention. He claims that his remand in custody by the Magistrates’
‘1.— Attempting to commit an offence. (1) If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.’
‘…he had received a briefing when the incident had been discussed; he had read the Athena log which referred to Mr Andrews dancing towards a young girl with his arms open inviting her to dance; the log referred to a witness who considered that Mr Andrews was trying to coerce the young girl away from her mother; the mother had to intervene as the child was moving towards Mr Andrews; he had been informed during the briefing of Mr Andrews’ previous convictions which included an offence involving children; he had noted that Mr Andrews had returned to the area the girl was in having initially driven away.’
‘Here the notes relied upon went no further than to seek to meet with the boy or boys in question. In our judgment this could not be regarded as more than a preparatory act, even on the assumption that the ultimate intention of the appellant was gross indecency. Incitement to commit gross indecency would require a proposition to be made for that specific purpose. A letter sent by an accused inviting a boy to commit gross indecency which did not reach him would be an attempted incitement. Reg. v. Ransford (1874) 31 L.T. 488, was such a case. It involved a letter sent to a boy at school, the letter being intercepted and handed to the school authorities. That was an attempt because the defendant had done all he could towards inciting the boy to commit an unnatural offence. Here, however, the note went no further than to seek to engineer a preliminary meeting. No proposition or incitement to the offence had emanated from the defendant. At most he was preparing the ground for an attempt. Accordingly, in our judgment, there was no evidence upon which he could be convicted. We are wholly sympathetic to the need perceived by the prosecuting authorities to take action in the circumstances of this case, but in our judgment the evidence was not capable of supporting the charges laid. Accordingly this appeal must be allowed.’ 31.2. In Geddes, the appellant had stood trial, so far as material, for attempted false imprisonment, from his conviction for which he appealed. Mr Geddes had gone into the boys' lavatory block, at a school. He had had no connection with the school and no right to be there. At about midday, a teacher had seen him in the boys' lavatory and had spoken to him. Mr Geddes had had a rucksack with him. A police officer, who had happened to be on the premises, had seen him and shouted at him, and Mr Geddes had left. In a cubicle in the lavatory block, a cider can which had belonged to Mr Geddes had been found. In the course of leaving the school, he had discarded his rucksack, which had been found in some bushes. Its contents had included a large kitchen knife, some lengths of rope and a roll of masking tape. Mr Geddes had been arrested three days later and identified by the teacher and some pupils from the school. The Crown had alleged that the presence of the cider can showed that Mr Geddes had been inside a cubicle in the lavatory block and that the contents of the rucksack were capable of being used to catch and restrain a boy who entered the lavatory. The rope could have been used to tie the boy; the knife to frighten him; and the tape to cover his mouth, to prevent him from screaming. The Defence had contended that the Crown’s case was based on speculation: the cider can did not establish that Mr Geddes had been hiding in the cubicle, since he could well have entered the cubicle for normal purposes and left the cider can there. Alternatively, since the partitions in the lavatory had not extended from floor to ceiling, the can could have rolled or been thrown into the position in which it had been found. There were other explanations for the contents of the rucksack. As identified by the Court of Appeal, the central point taken on appeal was that the evidence before the jury did not permit it to conclude that the Mr Geddes had done any act which had been more than merely preparatory to the commission of a crime. Rowley was amongst the caselaw considered by the Court of Appeal, which held: ‘The cases show that the line of demarcation between acts which are merely preparatory and acts which may amount to an attempt is not always clear or easy to recognise. There is no rule of thumb test. There must always be an exercise of judgment based on the particular facts of the case. It is, we think, an accurate paraphrase of the statutory test and not an illegitimate gloss upon it to ask whether the available evidence, if accepted, could show that a defendant has done an act which shows that he has actually tried to commit the offence in question, or whether he has only got ready or put himself in a position or equipped himself to do so. In the present case, as already indicated, there is not much room for doubt about the appellant's intention. Furthermore, the evidence is clearly capable of showing that he made preparations, that he equipped himself, that he got ready, that he put himself in a position to commit the offence charged. We question whether the cider can in the cubicle is of central importance, but would accept that in the absence of any explanation it could lead to the inference that the appellant had been in the cubicle. But was the evidence sufficient in law to support a finding that the appellant had actually tried or attempted to commit the offence of imprisoning someone? Had he moved from the realm of intention, preparation and planning into the area of execution or implementation? … Here it is true that the appellant had entered the school; but he had never had any contact or communication with any pupil; he had never confronted any pupil at the school in any way. That may well be no credit to him, and may indeed reflect great credit on the vigilance of the school staff. The whole story is one which fills the court with the gravest unease. Nonetheless, we cannot escape giving an answer to the fundamental legal question. We accept, as the judge did, that the evidence of Nicola Green must be treated as irrelevant. So, for this purpose, must the contents of the rucksack, which give a clear indication as to what the appellant may have had in mind, but do not throw light on whether he had begun to carry out the commission of the offence. On the facts of this case we feel bound to conclude that the evidence was not sufficient in law to support a finding that the appellant did an act which was more than merely preparatory to wrongfully imprisoning a person unknown. In those circumstances we conclude that the appeal must be allowed and the conviction quashed.’ 31.3. In R v MS, decided after the lower court had determined this matter, the defendant had separated, in acrimonious circumstances, from the father (AC) of her 12 year-old daughter, and had started a new relationship with a man who was a national of a North African country. She had asked AC if he would permit her to take their daughter to live abroad, but he had refused. Subsequently, the Family Court had issued a prohibited steps order, which had prohibited the defendant from taking her daughter out of the jurisdiction. However, she had already started to make plans to leave the country, having forged AC’s signature on a form ostensibly giving her permission to take her daughter abroad and booked a ferry from Dover to Calais, for the following day. On the day of the crossing, the defendant and her boyfriend had packed all of their belongings into their car and, together with the defendant’s daughter, had driven south from their home in Stoke-on-Trent. They had been stopped by police that afternoon, at a service station on the M25, south of London. The police had taken possession of five United Kingdom passports, along with documents regarding the ferry booking and hotel bookings in France. When interviewed, the defendant had denied intending to leave the jurisdiction, stating that they had been travelling to the home of a relative in Southampton. She had been charged with attempted child abduction, contrary tosection 1(1) of the 1981 Act andsection 1 of the Child Abduction Act 1984 . On the second day of trial, at the close of the Prosecution case, the judge had acceded to a Defence submission of no case to answer, finding that, since the defendant had been stopped some 85 miles from the port of Dover, her alleged acts had not been more than merely preparatory to the commission of the offence, a ruling from which the Crown appealed. 31.4. The Court of Appeal noted that [22]: ‘The locus classicus on the interpretation ofsection 1(1) of the Criminal Attempts Act 1981 was provided by Lord Lane CJ in R v Gullefer[1990] 1 WLR 1063 , 1066:“It seems to us that the words of the Act of 1981 seek to steer a midway course. They do not provide . . . that . . . the defendant must have reached a point from which it was impossible for him to retreat before the actus reus of an attempt is proved. On the other hand the words give perhaps as clear a guidance as is possible in the circumstances on the point of time at which . . . [the] ‘series of acts’ begin. It begins when the merely preparatory acts come to an end and the defendant embarks upon the crime proper. When that is will depend of course upon the facts in any particular case.” (Our emphasis.)’
‘23.Under the Criminal Attempts Act 1981 acts that are merely preparatory are excluded from the ambit of an attempt to commit an offence. But all acts short of those necessary for the commission of the intended substantive offence are in some sense preparatory. The introduction of the qualifying adverb ‘merely’ in the Criminal Attempts Act must have been intended by Parliament to distinguish acts which, although preparatory, are sufficiently close to the final act or acts to be properly regarded as part of the execution of the defendant’s criminal course of conduct, from those which are not. All will turn on the facts of the case.’ and Toulson LJ, in the course of his concurring judgment, had spoken ‘approvingly of a passage from the Law Commission’s Consultation Paper on Conspiracy and Attempts (Law Com Consultation Paper No 183), taken from the first and last sentences of para 14.5: “27. . . .’
‘74. Mr Caldwell submits that, in the present case, the appellant had “embarked on the offence proper”. By removing L from the current supervision of her mother and the court, the appellant had put his plan into action. His conduct was more than merely preparatory. When arrested, the appellant had been anxious that the iPad not be seized. When examined, the iPad disclosed the email correspondence with the appellant’s father regarding the plan to go to China. The District Judge had correctly described L’s removal from the shopping mall as “covert” and correctly found that the appellant had “deliberately sought to avoid the monitor”. The only possible inference, therefore, was that the appellant knew about the importance of the text messages on the iPad and sought to deceive the detectives so that they would not seize it. The appellant had taken L, had packed large suitcases, had his passport with him, had moved a considerable distance from Los Angeles, had enquired about the cost of a journey to Phoenix, and had told his father of his intentions. All this, according to Mr Caldwell, “indicates that he was about to take [L] out of the country”. Whether or not the appellant might ultimately have succeeded is not relevant. Whether or not the appellant’s attempt would be rendered doomed to failure or even impossible because he was not in possession of L’s passport does not determine whether an offence of attempt might nevertheless have been committed. 75. Whilst fully conscious of the fact-sensitive nature of the requisite assessment and of the need to avoid mechanistic comparisons with the facts of other cases, I am in no doubt that the case law on section 1 of the 1981 Act is such as to preclude a finding to the criminal standard that the appellant’s alleged conduct, if proved, would constitute the offence of attempted child abduction. There is more than a reasonable doubt that the series of actions relied upon by the respondent are not such as to show that the appellant, where arrested, had embarked on the “crime proper”. True, he had taken a number of steps that were plainly necessary if he were to cause L to leave the USA. He had removed her from E’s custody and control and was concealing himself and L from E and the authorities. But there were many things that still remained to be done before the appellant could remove L from the jurisdiction. He needed to obtain passport documentation for her, or to devise the means of enabling her to leave the USA without it. The factual summary does not indicate that the appellant’s suitcases contained anything other than his own clothes and other possessions. He was not at, or even near, an international transport hub. He had not obtained any travel tickets. Gullefer and Mason show just how temporally and physically close one needs to come to the completed act before a criminal attempt may occur. The appellant was far removed in both respects. 76. In his oral submissions, Mr Caldwell raised the possibility that the appellant could have taken L to Mexico, which is relatively near to Palm Springs. The factual summary, however, discloses no suggestion of such a plan or of any step taken to move towards the US/Mexico border. The submission is, I consider, demonstrative of the fact that the appellant had simply not, at the time of his arrest, taken sufficient steps to satisfy section 1 of the 1981 Act. 77. I accordingly find that the conduct relied upon is not such as to be capable of a finding to the criminal standard that the appellant would have committed the offence of attempted child abduction under the law of England and Wales.’
‘37 Duties of custody officer before charge. (1) Where— (a) a person is arrested for an offence— (i) without a warrant; or (ii) under a warrant not endorsed for bail, the custody officer at each police station where he is detained after his arrest shall determine whether he has before him sufficient evidence to charge that person with the offence for which he was arrested and may detain him at the police station for such period as is necessary to enable him to do so. … (3) If the custody officer has reasonable grounds for believing that the person’s detention without being charged is necessary to secure or preserve evidence relating to an offence for which the person is under arrest or to obtain such evidence by questioning the person, he may authorise the person arrested to be kept in police detention. …’
‘34 Limitations on police detention (1) A person arrested for an offence shall not be kept in police detention except in accordance with the provisions of this Part of this Act. (2) Subject to subsection (3) below, if at any time a custody officer— (a) becomes aware, in relation to any person in police detention, that the grounds for the detention of that person have ceased to apply; and (b) is not aware of any other grounds on which the continued detention of that person could be justified under the provisions of this Part of this Act, it shall be the duty of the custody officer, subject to subsection (4) below, to order his immediate release from custody.’
‘40 Review of police detention. (1) Reviews of the detention of each person in police detention in connection with the investigation of an offence shall be carried out periodically in accordance with the following provisions of this section— (a) in the case of a person who has been arrested and charged, by the custody officer; and (b) in the case of a person who has been arrested but not charged, by an officer of at least the rank of inspector who has not been directly involved in the investigation. (2) The officer to whom it falls to carry out a review is referred to in this section as a “review officer”. (3) Subject to subsection (4) below— (a) the first review shall be not later than six hours after the detention was first authorised; (b) the second review shall be not later than nine hours after the first; (c) subsequent reviews shall be at intervals of not more than nine hours. … (8) Subject to subsection (9) below, where the person whose detention is under review has not been charged before the time of the review, section 37(1) to (6) above shall have effect in relation to him, but with the modifications specified in subsection (8A). (8A) The modifications are— (a) the substitution of references to the person whose detention is under review for references to the person arrested; (b) the substitution of references to the review officer for references to the custody officer; and … (9) … (10) Where the person whose detention is under review has been charged before the time of the review, section 38(1) to (6B) above shall have effect in relation to him but with the modifications specified in subsection 10(A). … (12) Before determining whether to authorise a person’s continued detention the review officer shall give— (a) that person (unless he is asleep); or (b) any solicitor representing him who is available at the time of the review, an opportunity to make representations to him about the detention. (13) Subject to subsection (14) below, the person whose detention is under review or his solicitor may make representations under subsection (12) above either orally or in writing. (14) The review officer may refuse to hear oral representations from the person whose detention is under review if he considers that he is unfit to make such representations by reason of his condition or behaviour.’
‘38 Duties of custody officer after charge. (1) Where a person arrested for an offence otherwise than under a warrant endorsed for bail is charged with an offence, the custody officer shall, subject tosection 25 of the Criminal Justice and Public Order Act 1994 , order his release from police detention, either on bail or without bail, unless— (a) If the person arrested is not an arrested juvenile— (i) his name or address cannot be ascertained or the custody officer has reasonable grounds for doubting whether a name or address furnished by him as his name or address is his real name or address; (ii) the custody officer has reasonable grounds for believing that the person arrested will fail to appear in court to answer to bail; (iii) in the case of a person arrested for an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from committing an offence; (iiia) in a case where a sample may be taken from the person under section 63B below, the custody officer has reasonable grounds for believing that the detention of the person is necessary to enable the sample to be taken from him; (iv) in the case of a person arrested for an offence which is not an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from causing physical injury to any other person or from causing loss of or damage to property; (v) the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from interfering with the administration of justice or with the investigation of offences or of a particular offence; or (vi) the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary for his own protection; (b) if he is an arrested juvenile— … (c) the offence with which the person is charged is murder. (2) If the release of a person arrested is not required by subsection (1) above, the custody officer may authorise him to be kept in police detention but may not authorise a person to be kept in police detention by virtue of subsection (1)(a)(iiia) after the end of the period of six hours beginning when he was charged with the offence. (2A) The custody officer, in taking the decisions required by subsection (1)(a) and (b) above (except (a)(i) and (vi) and (b)(ii)), shall have regard to the same considerations as those which a court is required to have regard to in taking the corresponding decisions under paragraph 2(1) of Part I of Schedule 1 to theBail Act 1976 (disregarding paragraphs 1A and 2(2) of that Part). (3) Where a custody officer authorises a person who has been charged to be kept in police detention, he shall, as soon as practicable, make a written record of the grounds for the detention. …’
‘20 The next question is what article 5 requires to be done where the investigating authorities cease to have a reasonable suspicion that the detained person committed the offence in question. In my view, it must be implicit in article 5.1(c) as well as article 5.3 that the investigating/prosecuting authorities are required to bring the relevant facts to the attention of the court as soon as possible. In this way, the court can review the situation and order the person’s release if it is satisfied that there are no longer any grounds for the continuing detention. Conclusion on the article 5.1(c) claim 21 On the facts of this case, the earliest time when it is arguable that the police ceased to have a reasonable suspicion of the offence was on19 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 late on Friday, 4 February shortly after the plea and management hearing on the same day. In my view, it is arguable that, by failing to inform the CPS (and thereby the court) as soon as possible after 19 January of the results of the examination by NDFU, the police caused a breach of article 5.1(c). At the very least, it is arguable that, by failing to inform the court of the position at the plea and management hearing on 4 February, the police were responsible for a breach of article 5.1(c) in relation to the detention between 4 until 9 February. I see no basis for attributing any responsibility for this to the CPS who were unaware of the results of the examination until late on Friday, 4 February and brought the facts to the attention of the court on 9 February.’
‘42 I therefore accept…that the obligation of “special diligence” is imposed on the courts and not on authorities such as the defendants. We have not been shown the source of the phrase “special diligence” or any authority which explains the rationale for it. It seems to me that the explanation must lie in the gravity for the individual of a deprivation of liberty and the imperative of preventing arbitrary detention. That is why it is particularly important that a court that is charged with the responsibility of monitoring the detention of an individual who has been arrested on suspicion of the commission of an offence must conduct the proceedings with particular expedition or special diligence. 43 That is not, however, to say that the conduct of the investigating/prosecuting authorities is irrelevant to article 5.3. It is relevant in two ways. First, as the Strasbourg jurisprudence shows, lack of diligence on the part of those who are responsible for investigating the case and preparing for trial will always be relevant to the question of whether the court has conducted the proceedings with “special diligence” and whether a detention has been for an unreasonably long period. It is the duty of the court to grant bail where a detention has been for an unreasonably long time. What is unreasonable will depend on all the circumstances, including the time taken by the investigating authorities (where these are distinct from the court). If delay on the part of the investigating/prosecuting authorities causes the court to fail to conduct the proceedings with special diligence, then those who are responsible for the delay will be responsible for the breach of article 5.3. 44 Secondly, if the investigating authorities fail to bring to the attention of the court material information of which the court should be made aware when reviewing a detention, this may have the effect of causing a decision by the court to refuse bail to be in breach of article 5.3. The investigating authorities must not prevent the court from discharging its duty of reviewing the lawfulness of the detention fairly and with a proper appreciation of all the relevant facts of which the authorities should make the court aware. Unless this is done, there is a risk that the court will make decisions which lead to arbitrary detention in breach of article 5.3.’
‘64 … I agree, as Lord Dyson MR says in para 43, that if delay on the part of the investigative/prosecuting authorities causes the court to fail to conduct the proceedings with special diligence then those who are responsible for that delay will be responsible for the breach of article 5.3. Accordingly, in my view, it is not necessary to draw fine lines between the courts and authorities such as the defendants in this case for the purpose of examining whether the state overall has contravened article 5. Where a breach is established, then the particular emanation of the state that has caused the breach will bear the responsibility for it in our domestic law.’
‘3. In the claim form, the claim of both of the claimants is for damages consequent upon the defendant's alleged breach of "the first claimant'sarticle 5 ECHR right to liberty and security, because a criminal prosecution was proceeded with and the claimant remanded in custody when the defendant knew or ought to have known that the case was not sustainable". 4. Although a point was taken by the defendant as to whether the police were strictly prosecutors once the matter had been transferred into the hands of the Crown Prosecution Service, in the course of argument, it has been conceded and agreed that any defect in the pleading would be remedied were the pleading to be amended to plead that the defendant had unlawfully failed to disclose to the court various matters which it is said should have been disclosed and that they thereby breached the claimant's article 5(1) right to liberty. The matter can be considered upon that better basis.’
‘36. In my judgment, where, at the instigation of the police, a person has been remanded in custody upon grounds and evidence as put forward by the police, then as soon as the police have grounds to believe that the basis for detention is false, and there is no longer "reasonable suspicion of his having committed an offence", they have a duty to bring that information to the attention of both the representatives of the defendant and to the CPS and to the court as soon as possible. If they fail to do so, then for the period between the time when the defendant would have been released had they done so, and the time when the defendant is actually released, it is arguable that the detention was in breach ofArticle 5 ECHR and that this breach was caused by the police.’ continuing (at [37], [40] and [41]): ‘37. …What is said is that for a third party public body to be held liable (by which I mean a public body which is not the prosecutor or the court), it is necessary that the third party has disabled the court from exercising its own judgment on the question of whether there is reasonable suspicion. It is accepted that it doesn't matter whether that happens by the withholding of critical evidence, as occurred in Zenati, or by the provision of critical evidence, what is important is the test, namely that the court has been disabled from exercising its own judgment. For the claimants, Mr Chippeck accepts that that is the correct and appropriate test. … 40. These cases are cited to me, and I refer to them in this judgment, to emphasize that, in my judgment, the immunity which the police enjoys at common law, and the reasons for that immunity, inform the approach of the court to the cause of action which is allowed under the English law pursuant to the Human Rights Act and the Convention. Although, as Zenati shows, such an action is viable in theory, the threshold for the police to surmount is not a high one, and it would be a truly exceptional case, such as Zenati, where liability would be found. 41. Effectively, as it seems to me and as was submitted by Mr Johnson QC, there must be some "game-changing" information or factor which was not before the court, but which should have been, and which would have made all the difference to the court's decision and approach.’