back to article Home Office advises Police to break the law

Home Office advice to Police Forces in the UK is wrong in law and likely to leave cash-strapped police authorities incurring some very large legal bills over the coming months. That was the view given to El Reg today by Matthew Ryder, a barrister specialising in police powers and human rights. Following the recent ruling by …


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  1. Anonymous Coward
    Big Brother

    Rules of Law...

    There are only 2 rules to police work in the UK right now:

    Rule 1: The police do as they please and will continue to do as they please. Where police illegality is demonstrated, the goal posts will be shifted immediately.

    Rule 2: There are no exceptions to Rule 1.

  2. Anonymous Coward

    Allo allo allo allo!

    What's all this then?

    Oh I see I'm going to have to arrest you under section [.....insert anti-terror law of choice here.... ]

    Go on, pick one, they're all the same sunshine...

  3. This post has been deleted by its author

    1. Anonymous Coward
      Anonymous Coward


      >and show very little positive impact on anti terrorism operations....

      With regards to terrosrism that very little is nil. Tto date, not one terrorist has been caught by stop and search.

  4. John Savard

    On the Other Hand

    Failure on the part of the police to take the swiftest possible action against terrorists could cost the United Kingdom far more dearly, as it might mean that thousands of Britons are killed in a terrorist act that could have been prevented. Compared to lives lost in a terrorist attack, money lost in a lawsuit is a mere trifle - as if, of course, a terrorism suspect is in a position to sue anyone.

    I would think that the net result of this could be the UK's departure from the European Community, if the price of membership is anything which could compromise, in any way, its ability to defend itself against terror.

    1. Anonymous Coward

      what a load of crap

      Section 44 defends nobody from anybody, including terrorists.

      It just allows the police to do whatever they feel like because they don't like the look of you.

    2. william henderson 1


      cars then and save all those lives.

      what price freedom?

    3. seanj

      Terrorism suspect?

      " if, of course, a terrorism suspect is in a position to sue anyone."

      You do realise, don't you, that (assuming you live in the UK), you are already a terror suspect merely for existing? Even moreso should you choose to do anything with your aforementioned existence, like walk down a street or, God forbid, take a photograph.

    4. Kay Tie

      Cluebat needed

      "I would think that the net result of this could be the UK's departure from the European Community"

      it's called the European Union now.

      And anyway, the European Court of Human Rights is nothing to do with the EU (it in fact predates it).

      But then you knew that already, didn't you?

    5. Scott 19


      You've fallen for it then, here's an idea buy a life insurance policy for say 10 million and buy a lottery ticket every week, you got more chance of winning the lottery then being involved in any sort of terrorist attack.

      Media driven histeria its the bomb.

    6. PDC

      @John Savard

      Thousands of people die each year from MRSA, which the government could prevent, but don't. In 2008 over 4000 people died from being given the wrong prescription. Thousands die each year from cancer, yet much of the research is funded by charity rather than the government.

      So a couple of hundred deaths at the hand of a terrorist is pissing in the wind, and isn't a reason to turn the country into a police state.

    7. Terry H

      And when they come for you?

      STEP 1.

      RE shortsightedness incarnate above.

      STEP 2.

      'Those who would sacrifice freedom for security deserve neither' - Benjamin Franklin

      STEP 3.

      When the Nazis came for the communists,

      I remained silent;

      I was not a communist.

      When they locked up the social democrats,

      I remained silent;

      I was not a social democrat.

      When they came for the trade unionists,

      I did not speak out;

      I was not a trade unionist.

      When they came for the Jews,

      I remained silent;

      I wasn't a Jew.

      When they came for me,

      there was no one left to speak out.

    8. Circadian

      @John Savard

      " if, of course, a terrorism suspect is in a position to sue anyone."

      Have you heard of the recent case regarding terrorist suspects under control order winning their case in court?

      In this country we protest about the treatment of Aung San Suu Kyi, while the UK government try to carry out similar treatment to their undesirables.

      "... ability to defend itself against terror."

      The true defense against terror is courage.

    9. Intractable Potsherd

      You are ...

      ... a troll, aren't you? No-one can really believe that "thousands of lives could be lost in a terrorist attack" that could have been prevented by the use of s44 by some brainless plod on the street. The only way such an attack (which I maintain has such a small chance that it should not even really be contemplated by sane people) would be thwarted is by intelligence and covert ops.

  5. Ben Boyle

    @John 186 - Two rules of law

    One for us, one for them

    1. asiaseen

      Shouldn't that be

      One for us, none for them?

  6. Anonymous Coward
    Anonymous Coward

    at the end of the day

    It'll take a brave man to press the issue.

    1. Trevor Watt


      Why wait until the end of the day? Or were you just using some stupid meaningless idiom?

      1. Anonymous Coward
        Anonymous Coward


        it performs the job.

        And it isn't meaningless - it means that when everything else has been concluded (as in "at the end of the day")

        Your inability to see meaning is not my problem.

  7. Anonymous Coward
    Anonymous Coward


    Whatever happened to this officer? Let me guess... nothing?

    1. SirTainleyBarking

      Compare that to Paris the other week

      I was heavily camera'd up, there was a large police presence as there was a protest by a bunch of Algerians, I heard later. Got a bit lively by all accounts

      Attention from a pair of Gendarmes who I walked past. Absolutely none. Had I approached them, they would have pointed out interesting bits of the city to point a lens at.

      Would I do that in London. Probably not. I can do without the hassle

  8. Magnus_Pym


    "where a law was itself unlawful, a public official would not be acting unlawfully if they made use of it."

    An unlawful law? Lawfully using an unlawful law? What bollocks.

    I can only translate this into English as 'I AM the law and you have been judged'

    1. Mister_C

      translate into german

      it has been tried and is now known as "the Nuremburg defense".

      refine the definition of "public official" to "member of the armed forces" and the comment becomes one small step away from condoning war crimes.

    2. John70

      Sounds like...

      ...we need Judge Dread style police.

      1. Kay Tie

        Judge Dread style police

        "...we need Judge Dread style police."

        I think I'd prefer Judge Dredd.

        1. Anonymous Coward
          Anonymous Coward

          It's all about

          Judge Death - The crime is living, the penalty is death.

          Everyone commits a crime in the end - it's just a matter of time.

          1. william henderson 1


            had it right; make the law so pervasive and complex that every one is/becomes a criminal and every one can be monitored without interference.

        2. Chris Hedley Silver badge

          Re: Judge Dread style police

          > "I think I'd prefer Judge Dredd."

          I dunno, having the police issue cautions in the form of mildly risque ska sounds quite entertaining to me.

          But I'm also warming to the idea of Judge Dredd as the Style Police. Maybe we'll be rid of flared trousers once and for all!

  9. My Alter Ego

    This sounds familiar.

    So what you're saying is that it's the EU that is trying to save us from our own government. It should be familiar to all, seeing as the response is identical to the ruling on keeping DNA illegally and the EU slapping the Government for ignoring the illegal BT/Phorm wiretapping.

    The House of Lords is supposed to be a check on the Government, but it appears it's so full of Labour's cronies that it's not up do the job. As long as we remain in Europe we may have a chance of getting through this.

    1. Kay Tie

      Post-Enlightenment era of idiocy

      "So what you're saying is that it's the EU that is trying to save us from our own government."

      No. The European Court of Human Rights, the ultimate court for the European Convention on Human Rights, a treaty signed after WWII and drafted by a British civil servant. So a case of a less-hysterical era trying to save us from an post-Enlightenment era of idiocy.

  10. Scho


    Might as well just pull yer pants down and bend over; it's not like we really have a choice is it.

  11. gardener21
    Thumb Down

    @My Alter Ego: Not the EU

    The EU may well be trying to save us from our own government, but the European Court of Human Rights is not part of the EU.

    There is more than one Europe.

  12. John Smith 19 Gold badge
    Thumb Down

    "I was only obeying orders"

    Except that s44 is *not* an order, the officers *always* have discretion.

    They don't have to behave as authoritarian thugs.

    But what are the odds some will?

    Yes, Godwin's law etc. Nevertheless the Nazi regime during the Former Unpleasantness in the early 1940s was quite fond of this one.

    BTW is this *proper* Home Office advice or curtesy of some apparatchnik at ACPO (Ltd)?

  13. LawLessLessLaw

    Conspiracy, conspiracy, aggh jim lad conspiracy

    1 The offence of conspiracy

    [F1(1)Subject to the following provisions of this Part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either—

    (a)will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or

    (b)would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,

    he is guilty of conspiracy to commit the offence or offences in question.]

    F2(1A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

    F2(1B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

    (2)Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance necessary for the commission of the offence, a person shall nevertheless not be guilty of conspiracy to commit that offence by virtue of subsection (1) above unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place.

    F3(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

    (4)In this Part of this Act “offence” means an offence triable in England and Wales F4. . ..

  14. Anonymous Coward
    Anonymous Coward

    Citizens arrest a policeman?

    Great article, but it leaves me wondering:

    If you were witness to a policeman attempting to enforce s44 could you go so far as to make a citizens arrest of the policeman for said unlawful actions?

    it would surely make an interesting court case at least ;)

    1. Alex-TheManfromUncle
      Thumb Up

      Citizens Arrest

  15. My Alter Ego


    Yeah, realised that after posting. I suppose we could be laugh at the irony of UK Gov ignoring the ECHR, especially as the UK had a massive amount of input when it was drafted. Well, it's either that or weeping silently.

  16. adrianww
    Big Brother

    @John Savard

    You, sir, are either trolling or in dire need of a clue. Although a number of their predecessors were little better, our current government has been responsible for some of the most ill-conceived, badly-drafted and downright incompetent legislation ever to be enacted. Excessive police powers and the curtailment of civil liberties cannot be justified by raising the spectre of terrorist bogeymen or by wailing that we should "think of the children" or in any other of the countless ways that our money-grubbing political leaders and their lickspittle lackeys are relying upon to brainwash masses of people into sleepwalking towards a latter-day police state.

    Having said that, I find it rather depressing to note that their tactics seem to be working anyway.

    Big Brother, for the obvious reasons...

  17. Maurice Shakeshaft

    It is as sad as it is deplorable

    Hundreds of thousands of Britains and folk of other Nations have given their lives and more in the past 100 years to defend the liberties of this countries populace against tyrannical forces from abroad and here we are now relying on tyrannical forces from abroad to protect the lives and liberties of Britains.

    A sage once said - I believe - "the price of freedom is eternal vigilance". If this infringement is allowed to stand we in Britain will truly have become the "Big Brother" generation were we are prepared to look on and take vicarious, distracted interest rather than become involved and take control of our society - and we will deserve it. But not our forbears or our offspring.

    Almost none of the political establishment (MPs and Civil Servants) are working against it because Turkeys don't vote for Christmas - just as the political establishment wont vote for a power and budget cut even if there is another solution to a non-problem. Will they, Sir Humphrey?

  18. John Ozimek

    Citizen's Arrest

    When i wrote about this issue last week, i raised - albeit slightly tongue in cheek - the question of carrying out a citizen's arrest. i said then, echoing advice from a criminal lawyer, that such a course of action was highly dangerous legally and not something to be advised lightly.

    a police officer attempting to detain someone unlawfully may be carrying out an act of unlawful detention. That is a criminal offence and for that, they could be arrested.

    However, when it comes to carrying out an arrest, there is a very clear distinction between the arrest powers with which the police are endowed and the powers with which an ordinary member of the public is endowed. For the police to arrest someone they need only reasonable grounds for so doing.

    Suspicion that someone has just committed a crime are reasonable grounds, so police officers may arrest on suspicion.

    The ordinary member of the public can only arrest where the crime in question has actually been committed. How do you know its been committed? When a court says it has. Therefore, even if you saw someone removing goods from a shop and making off thru the door with them, be very careful. They MIGHT have merely forgotten to which case, whilst a police constable can validly carry out an arrest in such circs, any arrest YOU carry out would be unlawful detention and chances are YOU would end up in the dock.

    Worse: case law contains various examples of the consequences of someone making an unlawful arrest. Individuals are entitled to resist unlawful arrests/detentions - and that resistance may include some degree of violence.

    Yes. That applies to the police too...but how sure would you be that after the event, you can prove that you resisted an unlawful s44 arrest and therefore hit the police officer against the polcie story that you hit them and they then arrested you for assault? You'd need clear video recordings of the event, plus some good credible witnesses.

    Other slight prob with making a citizen's arrest: the offence must be punishable by a sentence of at least five years. How well do you know your sentences? If you see a crime being committed, is the max penalty 5 years? 10? 3?

    Get it wrong, and your citizen's arrest fails and opens you to all the consequences noted above.

    So yes. As thought excperiment, arresting a police officer makes for an amusing scenario. As practical course of conduct, it just ain't.

    1. Anonymous Coward

      Not quite true

      "The ordinary member of the public can only arrest where the crime in question has actually been committed"

      OR if they have reasonable grounds for suspecting somebody to be in the act of committing an offence.

      "the offence must be punishable by a sentence of at least five years"

      No. It must be an indictable offence, which is not even close to being the same thing.

    2. ElReg!comments!Pierre

      Further restriction for the citizen arrest

      I seem to remember that you cannot perform a citizen arrest if there is a constable around: you must notify him of the offense instead. Whether the policeman you are arresting counts or not is debatable. What is less debatable is that these people are always seen in pair (at least). So in real life you just CANNOT perform a citizen arrest on a policeman in duty.

  19. John Smith 19 Gold badge


    In terms of numbers killed in the UK your'e a bit high. the 7/7/05 killed 57 (Including the Brazillian electrician who looked a bit foreign). The IRA shut down in 1997 and the UDA at the end of last year.

    For a comparable death toll you need to be looking at botched DIY (50-70) and farm accidents (also about 70 a year) both according to RoSPA. I'd add children who die on the at-risk registers of local authorities, but that's about 10x higher.

    And remember a disproportionate, extreme response with a cowered populace and draconian "security" powers issued is *exactly* what the terrorist wants.

    Mine is the one with "Keep calm and carry on."

  20. Anonymous Coward
    Anonymous Coward

    Flashback to Stuart times...

    "...they responded by claiming that their own legal experts (Counsel) had advised them that even where a law was itself unlawful, a public official would not be acting unlawfully if they made use of it."

    As I understand it, that basically means: "the laws are for you peasants to obey; we rulers are above them".

    I thought Sir Edward Coke and his successors had succeeded in making it clear that "be you never so mighty, the law is above you". The principle was eventually brought home to King Charles I by chopping off his head. I hope such radical measures will not be required in our time.

    1. Anonymous Coward
      Thumb Up

      Spotted your mistake.

      ...I hope such radical measures will be carried out in our time.

      There, fixed it for you.

  21. RW

    The Home Office's counsel and its advice..., if my experience with lawyers is any guide, worth exactly nothing.

    Lawyers are very well aware who's paying them and, like the designers of "Japanese" gardens, tend to give you what they think you want.

    In all likelihood, the Home Office turned to its pet poodles among the legal profession for the nonsensical counsel they received. No other response could be expected under the circumstances.

    Legality is of dubious worth anyway. There have been more than a few seriously bad dictatorships and police states that went to some trouble to give the appearance of legality to their actions. What's more the issue is right vs wrong, with lashings of old-fashioned morality on the side. Funny that the Son of the Manse doesn't seem to get that there's a moral angle to government as well as a legal one.

  22. Luther Blissett

    Labour in a tail spin

    > that force may argue that "they were only following Home Office guidelines". A court may agree with this position

    Or it may take the view that the police have "operational independence", as the Liebores have alleged for years. That view would be supported by the fact that "guidelines" in legalese does not mean "legally necessary", merely "legally compelling". The distinction is analogous to (I would say derived from) logic. A fact can be a compelling reason for drawing a conclusion, but that does not entail that that the conclusion is logically necessary, i.e. that it is necessary for you to draw the conclusion if you are being logical (rational) . When you are compelled to do something, it is not a foregone conclusion that you will in fact end up doing that thing.

    > or – since the actions of individual police forces are the responsibility of their respective chief constables – a court could decide that the force had acted negligently in not taking advice for itself.

    It would do no harm to send a hardcopy of this piece to each Chief Constable, special delivery to be signed for. Should the case go against the police, this evidence could be very helpful in establishing exemplary damages.

  23. Anonymous Coward
    Big Brother


    .. doesn't mean anything.

    The police will use any powers give to their full extent on every occasion.

    However trivial, no exceptions.

  24. nsld

    @ John Ozmiek

    Doesnt section 24 of PACE give everyone exactly the same powers of warrentless arrest where they reasonably suspect a crime is being committed?

  25. Anonymous Coward
    Anonymous Coward

    Discretion even.

    stupid spelling mistake.

  26. Nickoli

    Why sue the Police?

    If I was falsely arrested because of Home Office's advice to Police Forces to continue to use this law, I would be looking to sue the Home Office, not the Police.

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