Habeas Corpus – Dicey – The principle remedy protecting personal liberty in England. Enables a detainee to obtain an immediate ruling from court on the lawfulness of their detention. The detainer must establish with a high degree of probability that the factual conditions for the exercise of the powers of detention have been met. This is a form of JR, but only to establish the lawfulness of detention. Article 5 (liberty/security) enforces this previous common law doctrine- it provides that every person who is detained is entitled to take proceedings by which the lawfulness of the detention is decided speedily by court and a release ordered if it is not lawful. Any act which infringes personal liberty (A5) is unlawful except it can be justified by reference to a specific legal power. (Waterfield- it is not enough to say it was just necessary in the course of police duty).
Remedies against the police
Civil actions – torts of trespass to the persons or unlawful imprisonment. Criminal proceedings brought by DPP. JR theoretically available but normally people want to claim damages so civil claim is more appropriate.
Police powers are discretionary and drafted by parliament to interfere with specific private rights; to arrest/detain/search (personal liberty) and to enter premises and detain property (freedom of property).
Police and Criminal Evidence Act (PACE) 1984
Sets out the law relating to police investigation arrest and detention.
Supplemented by codes of practice – informal guidance on various areas.
PACE emphasises “due process” procedural requirements, which must be complied with for the arrest to be lawful.
s.24 Arrest without warrant: constables
(1)A constable may arrest without a warrant—
(a)anyone who is about to or is in the act of committing an offence; or anyone he has reasonable grounds for suspecting to be about to or already committing an offence.
Ties in with ECHR Article 5(1) c- the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority of reasonable suspicion of having committed and offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so
Freedom of Property – Protocol 1, Article 1
Every person has is entitled to the peaceful enjoyment of his possessions (Includes property - Marckx v. Belgium) Traditional UK approach involved tort of trespass
Keegan v. United Kingdom – police forced entry to the property under the mistaken belief there was an armed robber inside. The police had failed