Paul Charles Andrews v The Chief Constable of Suffolk Constabulary

‘2. What happened on the 10th 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 (Footnote: ¹) 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.

The incident was reported to the police, who attended the scene. On the 15th June 2017 PC Pullen and PC Robinson saw Mr Andrews in his car and PC Pullen arrested him on suspicion of attempted child abduction.

…

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 the Police 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 to section 18 of PACE would be unjustified. He also asserts that all decisions or reviews by police officers relating to his continued detention were unlawful.

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.’

PC Pullen’s evidence is that on the morning of the 15th June 2017 he had been part of a verbal briefing which included DS Beales informing the team of the incident at Morrisons on the 10th June 2017 and that the claimant was involved in that incident. PC Pullen stated that he had access to the investigation log, that he noted that Mr Andrews had been seen to dance towards a young girl with his arms open. He said that he formed the view from the information that he had been told and read that Mr Andrews appeared to be attempting to coerce a young girl away from her mother. He considered that the conduct was more than merely preparatory. He also confirmed that he had been informed at the briefing of Mr Andrews’ previous convictions which included an offence involving a young child being locked in a cupboard.

The investigation log, otherwise known as the Athena log, gives details of the incident as set out at paragraph 2 of this judgment. It included the reported opinion of a woman standing a few feet away who spoke to the girl and the mother after the incident stating that “the man was going to take [the girl] away”. PC Pullen also stated in oral evidence that he had taken into account that the girl, who had appeared to be with her father, had then looked as if she was on her own and that the claimant had returned to speak to her when she looked unattended, pulling up in front of the store next to the girl, rather than in a parking bay.

In cross-examination it was put to PC Pullen that there had been no such briefing i.e. that PC Pullen was lying when he said there had been one. Ms Morris justified putting such an allegation on the basis that there was no contemporaneous record of any such briefing and that he had not mentioned the briefing in his pocket notebook, nor when preparing his MG11 statement for the purposes of a criminal prosecution and nor had any other officers who were present at the briefing been called to give evidence. PC Pullen’s response, that there was no such record because it was a verbal briefing and that it would not be usual to mention morning briefings in MG11 statements is one that I accept. He was also taken to entries within the investigation log from an Inspector Hinitt which stated that the offence was not made out as it did not cross the merely preparatory threshold. In answer PC Pullen said that he had not noted that comment but that by the time he was involved the officer in charge was DS Beales who did not express any similar reservation concerning whether the offence had been committed.

PC Pullen said that based on the information he had been given and read that he suspected that an offence of attempted child abduction had been committed. Whilst this was challenged, I accept PC Pullen’s evidence on this.

PC Pullen’s evidence regarding the arrest is similar to the account given by Mr Andrews. That Mr Andrews was parked in his car on the phone. That he permitted Mr Andrews to finish his call and then arrested him, informing him what he was being arrested for and explaining the allegation to him including the date, time and location of the incident and the nature of the allegation. There is a dispute as to whether PC Pullen cautioned Mr Andrews (although it is not asserted that even if there had been no caution, this would, by itself, mean that the arrest was unlawful). I accept PC Pullen’s evidence that he did caution Mr Andrews and that Mr Andrews then replied “No, that’s not right”.

PC Pullen said that he considered it was necessary to arrest Mr Andrews to allow for the prompt and effective investigation and to protect vulnerable children. PC Pullen explained that he was concerned that Mr Andrews may commit further child abductions and he also considered that a search of Mr Andrews’ vehicle was necessary. There is a dispute as to whether PC Pullen told Mr Andrews of the need for the arrest. I accept that he did so, but it is not, in any event, submitted that a failure to do so would make the arrest unlawful.’

‘Arrest without warrant: constables

…

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.

…

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.

The reasons are—

…

…’

‘18. The first question is whether PC Pullen suspected that an offence of attempted child abduction had been committed. This is a subjective test.

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.

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.

The second question is whether there were reasonable grounds for that suspicion. This is an objective test.

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.

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”.

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.

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.

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.

For an arrest to be lawful it must also comply with s28(3) of PACE which provides:

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 the 10th June 2017.

Notwithstanding this, Ms Morris submits that s28(3) is not met.

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.

I am satisfied that Mr Andrews was informed of the ground for the arrest at the time of the arrest.

Finally, the person making the arrest must have reasonable grounds for believing that the arrest is necessary: s24(4) and s24(5) PACE.

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.

I find that the arrest of Mr Andrews was lawful.

Article 5(1)(c) provides that no one shall be deprived of his liberty save in the following cases:

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?

When Mr Andrews was conveyed to the Great Yarmouth Custody Suite on the 15th 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”.

S37 of PACE provides that a custody officer may authorise a person arrested to be kept in police detention if that officer has:

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.

I am satisfied that PS Bloomfield had reasonable grounds for authorising Mr Andrew’s detention.

In evidence Mr Andrews also stated that he had no criticism to make of PS Bloomfield.

The reviews of detention

There were three reviews of detention prior to Mr Andrews being remanded in custody by the Norwich Magistrates’ Court.

In evidence Mr Andrews said that he had no criticism of those reviews.

Notwithstanding there was no criticism of the reviews by Mr Andrews, Ms Morris in cross-examination suggested to the reviewing officers that they had a duty to consider afresh at every review whether the original decision to detain Mr Andrews was appropriate and that this should involve a review of the basis for detention.

However, as submitted by Mr Clemens on behalf of the defendant, the obligation of a reviewing officer is as set out at section 34(2) of PACE:

There is no evidence that the grounds for the detention had ceased to apply at any of the reviews. Accordingly I am satisfied that each review was carried out in accordance with section 34 of PACE.’

‘Has there been a breach of Article 5?

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.

In relation to the detention of Mr Andrews Article 5(1)(c) provides that the detention must be:

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’ Court was also in breach of Article 5, relying on Zenati v Commissioner of Police of the Metropolis and another [2015] EWCA Civ 80. He frames his case in two ways. First, that there was a failure by the police to send to the Crown Prosecution Service (CPS) in a timely manner the recorded ABE discs of the interview with the child; and second, that if there were never any reasonable grounds for suspecting the claimant of having committed the offence, then, notwithstanding that the decision to charge and the objection to bail made in court was made by the CPS, the police remain liable for the breach of Article 5.

As to the second of those grounds Ms Morris was unable to point to any authority to support that proposition (although Mr Clemens allowed for the possibility where, for example, there had been misfeasance on the part of a police officer which was calculated to lead to the suspect being remanded in custody by a court). But given my findings that there were reasonable grounds to detain Mr Andrews and to deny him bail, this limb of Ms Morris’ argument falls away. Should it have been necessary I would, in any event, have found that once the CPS had considered the evidence and decided to authorise a charge, whether on the full test or, as here, the threshold test, the finding that there was, in the words of Article 5, “reasonable suspicion of having committed an offence” was one that was made by the CPS and accordingly, if there was no basis for that finding, it would not be the defendant that would be liable.

As to the alleged failure by the police to send to the CPS the ABE discs of the child in a timely manner, the evidence before me is that contained in the Athena system. DC Shrubshall, the officer in the case, gave evidence that this system will record the actions and tasks carried out. She gave evidence, relying on those entries, that the ABE discs of the child, which was carried out on the 22nd June 2017 were sent to the CPS on the 28th June 2017. The entries show that following the ABE on the 22nd June there was a request sent to the Image Technicians to provide three copies of the discs and that this had been done by 13:30 on the 28th June 2017 with the discs being sent by post to the CPS at 14:45 on that day.

Mr Clemens accepted that Zenati is authority for the proposition that if there is new material which undermines the prosecution case it should be brought to the attention of the CPS in a timely manner so as to enable the CPS to bring the matter back to court. But he submits first, the ABE interview of the child did not undermine the prosecution case; and second, that in any event it was sent to the CPS in a timely manner.

Ms Morris submits that the ABE went no further than support for the evidence that had already been obtained and that, by itself, undermined the prosecution case. And secondly, that the police should not have waited for the ABE discs to be copied but should have contacted the CPS to let them know of this soon after the ABE had been conducted.

I reject both of those submissions. The ABE of the child supported the evidence that had been obtained from the mother and other witnesses. It was on the evidence of the mother and those other witnesses that the CPS had made the charging decision and the decision to oppose bail when the case first came to the Magistrates’ Court on the 16th June 2017. As the ABE of the 22nd June 2017 was consistent with that evidence it cannot be said to have undermined the prosecution case. There was no requirement for the police to have contacted the CPS to inform them of this as a matter of urgency. I also find that the provision of the ABE discs to the CPS was in a timely manner.

It follows that I do not find that there was any breach of Article 5 by the defendant.

The claim against the defendant on all grounds is dismissed.’

concluding that the Respondent had proven that there had been objectively reasonable grounds on which to have suspected the Appellant of attempted child abduction;

concluding that the Appellant’s detention had been based on reasonable grounds, within the meaning of section 37 of PACE; and

rejecting the Appellant’s claim under Article 5 of the ECHR.

‘1.— Attempting to commit an offence.

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.’

The circumstances in which the police might be liable under Article 5 of the ECHR for a period of detention after a detainee has left police detention and is ordered by a court to be remanded in custody, will be exceptional. That is so on first principles, because the police have no direct participation in a bail decision, which is a matter for the court, applying the Bail Act 1976, and because the police do not themselves detain or have any say over the conditions of detention; each being the responsibility of the prison service.

Neither party had been able to produce authority supportive of the proposition that the police can be liable under Article 5 for detention, post-remand by a court, other than on the application of the principles identified in Zenati (which did not apply here). Furthermore, on the Appellant’s analysis, if there could never have been any objective grounds for suspicion and adopting a literal reading of Article 5, it would have been open to the claimant in Zenati to have argued that his detention had been unlawful from the time of his arrest. Experienced counsel in that case would have been likely to have taken that point, had it been arguable, but had not done so.

If the Appellant’s contention were right, anyone unlawfully arrested because a genuinely held subjective belief was not made out on an objective analysis would automatically succeed against the police for the period of remand imposed by a court. That was contrary to the understanding held by practitioners in the field of police law and there was no authority supportive of such a proposition.

Were the police deliberately to falsify an arrest and charge in the hope or expectation that a court would refuse bail, they would be liable in misfeasance for an abuse of power and might be liable under Article 5. That concession had been recorded at [60] of the Judgment. Similarly, an incompetent omission to pass on information which disabled the court from forming its own judgment might result in liability. That was not this case; it was to be noted that:

‘…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.’

In Rowley, so far as material for current purposes, the Appellant appealed from his conviction for attempting to incite a child under the age of 14 years to commit an act of gross indecency, in circumstances in which he had left notes for boys, in public places. The contents of those notes had been in similar terms, inviting boys to act as his ‘pretend son’, or as a messenger, in return for sweets and pocket money. If interested, the boy was directed to fill in the back of the note and leave it for Mr Rowley to collect. In two cases, the notes had been in more explicit sexual terms. The police had begun surveillance of the area and Mr Rowley had been seen entering public lavatories and remaining there for 15 minutes or more. He had been arrested at his home. Entries found in his diary had indicated a desire for sexual activity with boys and had been linked with the notes. At the outset of the trial, counsel for Mr Rowley had applied to quash the indictment, so far as the criminal attempt was concerned on the basis that the acts done had been no more than merely preparatory. That application had been refused. A later submission of no case to answer, made on the same basis, had also been rejected. Allowing the appeal and quashing the conviction, the Court of Appeal held [1025 B-C] that the effect of section 4(3) of the 1981 Act (Footnote: ³) was that it was for the jury to determine whether or not the act had been more than merely preparatory, but only, in circumstances upon which the judge has to rule, where there is some evidence fit for their consideration on that issue. It held that [1025 D-F]: ‘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.’

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:

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 to section 1(1) of the 1981 Act and section 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.

The Court of Appeal noted that [22]: ‘The locus classicus on the interpretation of section 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.)’ It went on to review relevant caselaw, including Geddes, and Moore v Director of Public Prosecutions [2010] RTR 36, in which Owen J, giving the lead judgment, had observed:

Having so noted, the Court of Appeal observed that ([33] and [34]), ‘… “the line is fine” but the court must avoid conflating an admitted mens rea with the decision as to whether a “sufficient actus reus” has been established… It is important in our judgment not to lose sight of the considerable differences that exist between the various offences which may be attempted (essentially the entire criminal calendar, with some clear exceptions such as attempting to commit the crime of conspiracy …, along with multiple different ways in which even similar or identical offences are attempted. The facts of the cases considered above serve to demonstrate the sheer variety of both circumstances and offending. This results in highly fact-specific decisions as to whether the steps taken by the accused were no more than merely preparatory. …But no single factor, including proximity, constitutes a uniform test that applies to all species of offences…Whether, prima facie, steps had been taken as part of the execution of the plan which were sufficiently close to the final act will always depend, therefore, on the ingredients of the offence and the facts of the case.’ It held that, in the trial with which it was concerned, it was entirely confident that the various steps taken by the defendant, viewed together, had formed part of the execution of the defendant’s plan to abduct the child. They had been [36] ‘steps immediately preceding the final act that were necessary to complete her plan and to bring about the commission of the intended offence (viz by travelling on the ferry to France). Put otherwise, when arrested, she was in the position of attempting to commit the offence in question, rather than simply getting ready or putting herself in a position to do so, and we have no doubt she had embarked “upon on the crime proper”. The distance they had yet to travel to Dover on the motorway, which was a critical factor for the judge, was essentially unimportant given the multiple steps that, by the time they were intercepted, had been taken and the overall stage in the venture that had been reached. It was open to the jury, in our judgment, to conclude that the defendant was attempting to abduct SS.’ Accordingly, the ruling of the trial judge was reversed, as having been wrong in law, and a new trial was ordered.

In Perry, also decided after the proceedings before the lower court, Lane J considered an appeal from a district judge’s refusal to overturn the Secretary of State for the Home Department’s decision to extradite the appellant to face trial, in California, for offences of kidnap, threats to kill and associated conduct in respect of offences against the person. In so doing, he considered whether the conduct relied upon by the respondent, if proven, would constitute the offence of attempted child abduction under the law of England and Wales. The parties had been agreed that, for the purposes of section 137 of the Extradition Act 2003, the offence under section 1 of the Child Abduction Act 1984 would have been completed if the appellant had taken the child (L) out of the United States of America, rather than merely out of the State of California, which he had not done, having been arrested in Palm Springs. The issue was whether Mr Perry had committed acts which had been more than merely preparatory to taking L out of the USA. There had been no dispute that he had possessed the necessary mens rea, having had the intended aim of taking L to China. Lane J reviewed earlier caselaw (not including R v MS), before finding, at [74] to [77]:

For the actus reus of attempt required by section 1(1) of the 1981 Act to be proved, an individual need not have reached a point from which it is impossible for him to retreat. The relevant series of acts begins when the merely preparatory acts come to an end and the individual embarks upon the crime proper: R v Gullefer.

Whilst the line is fine, care must be taken to avoid conflating the required mens rea with the decision as to whether a sufficient actus reus has been established: R v MS.

Preparing the ground for an attempt is not capable of supporting a charge under section 1(1) of the 1981 Act: Rowley.

The demarcation between acts which are merely preparatory and those which may amount to an attempt is not always clear or easy to recognise. There is no rule of thumb test and there must always be an exercise of judgment, based on the particular facts of the case. An accurate paraphrase of the statutory test is whether the available evidence, if accepted, could show that an individual 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. Had he moved from the realm of intention, preparation and planning into the area of execution or implementation?: Geddes.

All acts short of those necessary for the commission of the intended substantive offence are, in some sense, preparatory. The qualifying adverb ‘merely’ is intended to distinguish acts which, although preparatory, are sufficiently close to the final act(s) properly to be regarded as part of the execution of the individual’s criminal course of conduct, from those which are not. Steps immediately preceding the final act necessary to effect the individual’s plan and bring about the commission of the intended offence fall into the former category. All will turn on the facts of the case: Moore v Director of Public Prosecutions.

The sheer variety of both circumstances and offending encompassed by section 1(1) of the 1981 Act results in highly fact-specific decisions as to whether the steps taken by an individual are more than merely preparatory to the commission of the substantive offence. No single factor constitutes a uniform test which applies to all species of offence. Whether, prima facie, steps have been taken as part of the execution of the plan which are sufficiently close to the final act will always depend, therefore, on the ingredients of the offence and the facts of the case: R v MS.

Acts by the Appellant

Following an initial interaction with the child’s father, at a time when her mother had been inside the store, the Appellant had gone back to his car;

He had then driven his car around the car park, stopping directly in front of the young girl, when she had appeared to be unattended;

He had called out to her, stating that his music was loud and clear, ‘just for [her]’;

He had then got out of his car, dancing and shimm[y]ing towards her, with his arms wide open, asking if she wanted to dance;

After the child’s mother had put her arm around her (as the child had begun to move towards the Appellant) and said, ‘No, she’s fine, thank you’, he had driven off;

Wider matters

In the view of a witness, the Appellant had been trying to coerce the child away from her mother, requiring the mother to intervene as the child had moved towards him; and

The Appellant’s previous convictions had included an offence involving a child.

by contrast with those in Rowley, the acts here under consideration may themselves be seen as constituting efforts by the Appellant to induce the child to accompany him, rather than the taking of preliminary steps;

unlike in Geddes, the Appellant had directly interacted with the child; the acts in question were not simply indicative of his intent;

as in MS, the fact, if it be the case, that additional steps might have needed, or been intended, to be taken by the Appellant, was nothing to the point, given the steps already taken at the point at which the child’s mother had intervened. In any event, unlike the position in MS, it is not clear that any further act would have been required in order to complete the offence (as indicated by the child’s reaction);

in Perry, a different conclusion was reached on the particular facts (and apparently without the benefit of MS), on the basis that ‘there were many things that still remained to be done’ and that ‘the appellant had simply not, at the time of his arrest, taken sufficient steps to satisfy section 1 of the 1981 Act.’. That is not true of this case (see above).

‘37 Duties of custody officer before charge.

Where—

without a warrant; or

under a warrant not endorsed for bail,

…

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

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.

Subject to subsection (3) below, if at any time a custody officer—

becomes aware, in relation to any person in police detention, that the grounds for the detention of that person have ceased to apply; and

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.’

There is a substantive difference between the imposition on a custody officer of a proactive obligation to consider/review the matters to which an arresting officer is obliged to have regard and the imposition of a duty (itself unsurprising) where a custody officer ‘becomes aware’ that the grounds for detention have ‘ceased to apply’ and is not aware of any other grounds on which continued detention of that person could be justified. Such language is focused upon the position as matters stand at the relevant time. Given the careful framing of the different statutory duties incumbent upon each officer in the particular circumstances specified by PACE, clear language to the effect for which Ms Morris contends would have been required, which is not to be found. I have been taken to no authority supportive of the obligation or construction for which she contends.

‘40 Review of police detention.

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—

The officer to whom it falls to carry out a review is referred to in this section as a “review officer”.

Subject to subsection (4) below—

…

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—

…

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).

Before determining whether to authorise a person’s continued detention the review officer shall give—

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.

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.

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 to section 25 of the Criminal Justice and Public Order Act 1994, order his release from police detention, either on bail or without bail, unless—

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 the Bail Act 1976  (disregarding paragraphs 1A and 2(2) of that Part).

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

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 on 19 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.

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.

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's article 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".

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 of Article 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.

…

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.

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.’