Power to detain

31 May 2021

Not reviewed after the date of publication

Question: 

Please can you clarify what powers officers use/have to detain someone?

For example. if officers attend allegations of a dispute/fight and all parties are split up - what powers do officers have to detain them to establish what has gone on?

Answer:

The expression 'detain' is used in parts of criminal law, such as a 'stop and search' (section 1(2)(b) of PACE) or in relation to a 'banning order' (section 21A(2) Football Spectators Act 1989), to allow an officer to take some course of action in relation to the person who has been held. Whether there is a power available to the police to detain someone will depend on the exact circumstances the officer finds themselves in. If a power permits an officer to 'detain' someone then to all intents and purposes that person is temporarily arrested whilst the procedure takes place.

When the police attend an incident of a type you mention, it may be that there is no requirement for any of the parties to be detained and they are simply spoken with in order to establish the facts of the incident.

If it is necessary to detain in the circumstances you mention, the power used by officers to detain the persons present would likely be as a result to prevent a breach of the peace pursuant to common law. This common law power provides the police the ability to intervene and/ or detain by force or to arrest.

A breach of the peace is defined R v Howell as:

'A breach of the peace is committed whenever harm is done, or is likely to be done to a person, or, in his presence to his property, or, whenever a person is in fear of being harmed through an assault, affray, riot or other disturbance'.

The power must only be used if necessary and if the threat of or renewal of a breach of the peace is both real and imminent. The detainee must be released once the breach, or potential breach, has ended and is not likely to reoccur.

However, in terms of domestic incidents it was held in the cases of McConnell (1990) and Mcquade (2001) the power to arrest/detain for a breach of the peace in a purely private domestic dispute should only be used in 'exceptional' circumstances. For example, if an argument developed further or was likely to affect neighbours there is a greater chance of it becoming a breach of the peace.

Please see document D447 on PNLD for further guidance on the use of powers under this common law concept.

Unless specified in statute for a specific situation, the police are limited in the action they can take to detain a person in order to establish the facts of an incident. Please be aware of the case of Walker v Commissioner of Police of the Metropolis (2014) where it was held that an officer unlawfully detained and imprisoned a male in a doorway for a few seconds when the officer blocked him in with the intention of conducting further enquiries.

Please also see our FAQ - Unlawful restraint - not under arrest, which may be of interest.

An unlawful detention is likely to lead to the same sort of civil action as would result from an unlawful arrest and any claim of unlawful detention will ultimately be for a court to decide.

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