Thursday, 14 January 2010

Welfare concerns are not sufficient for the police

Although it may be possible under PACE to enter premises so as to protect people or property, that won’t be so where a constable’s only concern is welfare. That is the lesson of a recent case, in which a man who spat at one constable and head-butted another was found not to have assaulted them in the execution of their duty. (Syed v DPP, Divisional Court, 13 January 2010)

The relevant provision is section 17(1)(e) of the Police and Criminal Evidence Act 1984, which says that a constable may enter premises for the purpose, amongst other things, “of saving life and limb or preventing serious damage to property”. Last year, the Divisional Court said this power would cover protecting someone from themselves, as well as from someone else, but that in ‘life and limb’ cases, it can only be used where a constable reasonably believes serious bodily injury is imminent. (Baker v CPS [2009] EWHC (Admin) 299)

Here, the situation was not sufficiently serious to justify the use of PACE. Two constables had attended Mr Syed’s house following reports of a disturbance. He claimed to have been arguing with his brother, but became evasive when questioned further. The constables told Mr Syed that under section 17, they could enter his house if they were in fear for the welfare of anyone there. Mr Syed did not accept that this was so, and he reacted in the way that led to the charge.

The magistrates convicted Mr Syed, but the Divisional Court took a different view. It said section 17(1)(e) was clear: there would be a right of entry without warrant only where something serious had occurred or was in prospect. Here, there was no sign that anyone on the premises had been injured (or any property damaged) and Mr Syed’s explanation had not been contradicted. The threshold applied by the constables – concern for welfare – was too low. When entering the premises, therefore, they had not been acting in execution of their duty, and whilst Mr Syed might have acted improperly, his conviction could not be allowed to stand.

Though colourful, these circumstances might not be typical. Certainly, the section 17 power is sometimes invoked in the case of people with mental disorder, where a warrant has not been obtained under section 135 of the Mental Health Act and, because all concerned are on private premises, section 136 will not permit an arrest. Tempting though it may be in such circumstances for constables to ‘smell gas’, they should ensure before invoking PACE that what they wish to guard against really is serious harm.

MCA advocacy: the second year

The Department of Health has just reported on the second year of Independent Mental Capacity Act (IMCA) activity.

There have been increases across the board, with women more likely than men to have an IMCA, and those over 80 years-of-age the likeliest of all. Because of some schoolboy errors, however, the report’s conclusions about adult protection work are too pessimistic.

The largest rises were in the use of IMCAs in care reviews and with serious medical treatment, where the first year’s figures had been troublingly low. Decisions about a change in accommodation were also more likely to involve IMCAs, but overall, the Department doesn’t think that the service is reaching all the people it needs to.

When it comes to adult protection work, where the new report is equally downbeat, the picture is a little more complicated. This is for two reasons:

* The report mis-states the rate of increase in IMCA referrals. There were 681 in 2007/08 and 960 in 2008/09, a rise of 41 per cent (not the 29 per cent claimed).
* And the report has an exaggerated view of the powers of local authorities. It says an IMCA may be appointed even where there is only an allegation of abuse. In fact, that step can be taken only where adult protection proceedings have already been commenced or are at least in prospect. (That state-of-affairs was the subject of adverse comment last autumn, following research into the use of IMCAs in adult protection proceedings.)

These reservations notwithstanding, the latest figures are troubling. They show, for example, that while Cornwall made 50 adult protection referrals to IMCAs in 2008/09, and Devon made 43 and Birmingham 33, only 20 local authorities made more than ten referrals, and ten local authorities made no referrals at all.

Friday, 1 January 2010

Welcome ...

… to this blog, which, as the subtitle suggests, is about the point where law meets life.

You can find a brief description of the purpose of the blog here, and an explanation for its title here.

When I began the blog, I said that my posts would be infrequent. In fact, they now number almost 50, and they deal with subjects such as the Mental Health Act, the Mental Capacity Act, the Deprivation of Liberty Safeguards and inquests.

Initially, I saw the blog as a way of publicising the book whose title it shares, and along the way, I have also used it – somewhat shamelessly – to plug other publications, including my book on the nearest relative.

In the last eighteen months, however, I have also written about many other things as well, from vulnerable adults and fertility law to treating children, withholding mail and imprisoning transsexuals. And I have also discussed the medieval Ship of Fools (as imagined by Foucault) and tried to argue that coroners are just like professional wrestlers. You can find those posts, and many others, right here.

This is my only presence in cyberspace. I’m not on facebook, bebo or skype and – mercifully, I think – you won’t catch me tweeting (although I have just returned from a long walk, am now drinking a very nice cup of coffee and shall shortly be reading some PG Wodehouse).

If you would like to comment on this blog or its posts, please write to me at

Oh, and Happy New Year!