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Immigration Doge

Breach of the Peace - Procedure (Immigration Officers)

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Immigration Doge

Hello ladies & gents - time for another one of my "Not quite law, but procedure" threads! This is mainly aimed at Met officers, but I'm interested to hear from the county mounties as well, as it will benefit the whole organistation :)

So, you may or may not be aware of the rising hostility towards IO's on the streets of London recently: https://www.thesun.co.uk/news/4014426/labours-john-mcdonnell-glorified-violence-against-immigration-officials-with-sick-tweet/ (sorry for the link to the horrible rag, but it's the only one I have).

In a nutshell, we're having to deal with more and more public order issues. The problem is, IO's generally "tactically retreat" from such incidents and Senior Management in Immigration Enforcement have been encouraging officers to utilise powers (obstruct / assault Immigration... and BoP) in an effort to tackle these individuals. Now, other than myself, no one I'm aware of has arrested for BoP (which happened outside our nick) and many officers are fearful of using such powers because no one has really "set the precedent"  with what happens next - our organisation is about 150 years behind you lot! :D

My aforementioned BoP arrest resulted in MD officers turning up and eventually releasing the DP - the breach had passed and it was the right result. However, I want to look at a theoretical incident where that's not really possible. So, one for you to consider:

 

Quote

 

Whilst immigration officers are conducting a Sch.2 Para.17(2) IA1971 Warrant at a business "somewhere in London," a hostile crowd gathers (No Borders liberal group) and begin to direct comments at the IO's. One male becomes aggressive, swearing and threatening violence against the officers. One of the IO's is satisfied that a Breach of the Peace is occurring and arrests the male under common law [R v Howell 1981] - the officer restrains and handcuffs the male [S.3 CLA 1967] placing him inside the Immigration Enforcement cell van.

(For the purposes of this example, assume police are not required to attend to help with dealing with the crowd - the IO's are all in order and able to contain the situation).

 

 

Questions - what happens next:
- Should the IO's transport the DP to police custody or call for a Constable to attend the scene?
- Would a custody PS be receptive to a BoP detainee... or would they laugh us out the nick?
- If we do end up in custody and the custody PS is happy to accept the DP, what is the likelihood that someone will be taken to the Mags, for the purposes of binding over? Is BoP something that is pursued nowadays?
- If custody isn't an option and / or police are uninterested in the case, what should we do? Drive the DP to another location, await the breach to pass and de-arrest?

 

As ever, your comments are really appreciated - it helps us to ensure we're following correct procedure and it helps the organisation to grow! thankyou.gif

 

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Mac7

I'll try and have a bash at this but would add my own disclaimer that I'm an unsure of what powers an IO has. Also training world is vastly different from reality, but here goes.


You are lawfully on the premises, so that isn't an issue. I will assume that the premises is a public place for the purpose of this answer because, not only is the person committing a BOP but would appear that more substantive offences under the public order act also. There also potentially a common assault which I believe IO's can arrest for.

There is definitely a BOP offence which the IO has arrested the person for and removed them to a van. I would suggest that the BOP is occurring due to the presence of the IO's and would therefore likely reoccur should the person be de arrested while IO's are still on scene. From my experience of working with IO's they can be on scene for a long time. You therefore could not hold the prisoner in the van for an extended period while you carry out your enquiries and realised him at the end when you leave. That would be unlawful.

What happens next?

I believe (don't quote me) that you as IO's should take the prisoner to custody.

I've taken many prisoners in under BOP and they have been authorised. However, the majority have been intoxicated and I could prove that the BOP would likely reoccur and I've never had one turned away. PS's are never receptive of BOP prisoners but will authorise detention in my experience.

The likely hood of a BOP going to mags for a bind over is very slim indeed, or non existent. I've never had one go - but I think they should. The police would not take on a BOP prisoner especially in the current climate.

Driving prisoners to an alternate location is something that happens. Whether that is an agreed course of action in training world I'm not sure. But as stated above, the presence of IO's is causing the BOP therefore you could justify detaining them to custody while you conduct your warrant.

In summary - get the cops down to arrest for a more substantive offence (unless you have the power too) and take to a suit if the necessity test it met.

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Mac7

I'll try and have a bash at this but would add my own disclaimer that I'm an unsure of what powers an IO has. Also training world is vastly different from reality, but here goes.

 

 

You are lawfully on the premises, so that isn't an issue. I will assume that the premises is a public place for the purpose of this answer because, not only is the person committing a BOP but would appear that more substantive offences under the public order act also. There also potentially a common assault which I believe IO's can arrest for.

 

There is definitely a BOP offence which the IO has arrested the person for and removed them to a van. I would suggest that the BOP is occurring due to the presence of the IO's and would therefore likely reoccur should the person be de arrested while IO's are still on scene. From my experience of working with IO's they can be on scene for a long time. You therefore could not hold the prisoner in the van for an extended period while you carry out your enquiries and release him at the end when you leave. That would be unlawful.

 

What happens next?

 

I believe (don't quote me) that you as IO's should take the prisoner to custody.

 

I've taken many prisoners in under BOP and they have been authorised. However, the majority have been intoxicated and I could prove that the BOP would likely reoccur and I've never had one turned away. PS's are never receptive of BOP prisoners but will authorise detention in my experience.

 

The likely hood of a BOP going to mags for a bind over is very slim indeed, or non existent. I've never had one go - but I think they should. The police would not take on a BOP prisoner especially in the current climate.

 

Driving prisoners to an alternate location is something that happens. Whether that is an agreed course of action in training world I'm not sure. But as stated above, the presence of IO's is causing the BOP therefore you could justify detaining them to custody while you conduct your warrant.

 

In summary - get the cops down to arrest for a more substantive offence (unless you have the power too) and take to a suit if the necessity test it met.

 

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Cathedral Bobby

Any person has power of arrest for CL BoP so there is no legal problem in using it. It does, however, seem a strange choice given that any person who obstructs an Immigration Officer or other person lawfully acting in the execution of the 1971 Act, therefore you have power of arrest which would more closely reflect the circumstances you describe and, which fits, more importantly, within your own specialist legislation.

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Milankovitch
12 hours ago, Immigration Doge said:

- If we do end up in custody and the custody PS is happy to accept the DP, what is the likelihood that someone will be taken to the Mags, for the purposes of binding over? Is BoP something that is pursued nowadays?

This might be relevant to your questions on that point.

Quote

The Hicks and Others v The Commissioner of the Police of the Met [2012] EWHC 1947 (Admin) case and the subsequent (civil) Court of Appeal case [2014] EWCA Civ 3 concluded that, when making an arrest, the arresting police officer must have the intention to bring the person ‘before a competent legal authority’ (ie, a magistrate or justice of the peace), otherwise the arrest violates Article 5(1)(c) European Convention on Human Rights (ECHR).

https://www.app.college.police.uk/app-content/mental-health/mental-health-detention/#police-powers-to-enter-and-detain

 

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Radman
9 hours ago, Mac7 said:

I'll try and have a bash at this but would add my own disclaimer that I'm an unsure of what powers an IO has. Also training world is vastly different from reality, but here goes.


You are lawfully on the premises, so that isn't an issue. I will assume that the premises is a public place for the purpose of this answer because, not only is the person committing a BOP but would appear that more substantive offences under the public order act also. There also potentially a common assault which I believe IO's can arrest for.

There is definitely a BOP offence which the IO has arrested the person for and removed them to a van. I would suggest that the BOP is occurring due to the presence of the IO's and would therefore likely reoccur should the person be de arrested while IO's are still on scene. From my experience of working with IO's they can be on scene for a long time. You therefore could not hold the prisoner in the van for an extended period while you carry out your enquiries and realised him at the end when you leave. That would be unlawful.

What happens next?

I believe (don't quote me) that you as IO's should take the prisoner to custody.

I've taken many prisoners in under BOP and they have been authorised. However, the majority have been intoxicated and I could prove that the BOP would likely reoccur and I've never had one turned away. PS's are never receptive of BOP prisoners but will authorise detention in my experience.

The likely hood of a BOP going to mags for a bind over is very slim indeed, or non existent. I've never had one go - but I think they should. The police would not take on a BOP prisoner especially in the current climate.

Driving prisoners to an alternate location is something that happens. Whether that is an agreed course of action in training world I'm not sure. But as stated above, the presence of IO's is causing the BOP therefore you could justify detaining them to custody while you conduct your warrant.

In summary - get the cops down to arrest for a more substantive offence (unless you have the power too) and take to a suit if the necessity test it met.

In my old PCSO's days we were instructed at one time to arrest violent/aggressive people to prevent BoP rather than detain and then the responding police officers would arrest/deal with whatever statutory offence fit the scenerio, such as a Sec 4A or Sec 4 POA, Assault, whatever offence fits. I do not know if this is still the advice dished out to PCSO's, I work with two old hats who always tend to use their common law/detention powers relatively well.

As a PC I have done this with a suspect who had threatened to smash a PCSO's  face in when they dared asked him to put his cigarette out on a platform, PCSO locked him up and had him in cuffs for a BoP before I even got on scene, I simply locked him up for Sec 4 POA which he was charged with.

I see BoP as an incredibly useful but underused power for PCSO's, it just fits so many different scenerios - It would equally be useful for Immigration Officers..

 

 

Edited by Radman

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ParochialYokal

BoP was often historically used by police officers who did not fully understand the potential of more substantive offences (e.g. 'Arrest for BoP and then arrest them for something else later on when we have figured out what that might be'), but there has been a shift away from that over the last decade or so due to better awareness.

 

I cannot understand why an IO would want to arrest for BoP? Firstly, would they be acting as an IO? Probably not. Is there a Home Office policy that encourages or discusses the circumstances in which BoP might be suitable? I doubt it. IOs could be exposing themselves personally to the possibility of civil litigation for unlawful imprisonment.

 

As Cathedral Bobby quiet correctly highlights, there is an offence of obstructing an IO under the Immigration Act. Whilst I suspect that there isn't a huge amount of case law regarding obstructing an IO, there is a lot of case in relation to obstructing a constable and I would suggest that the same principles apply. Also, there is a separate offence under the Misuse of Drugs Act regarding obstructing a constable and that too has case law supporting it.

 

Here is a link to a couple of interesting articles on the matter: https://www.criminallawandjustice.co.uk/features/Wilful-Obstruction-and-Execution-Duty

 

https://www.criminallawandjustice.co.uk/features/Resisting-Police-Officer

 

The difference between obstructing an IO and obstructing a constable is that the latter must be wilful but that is not the case for the former. As such, I would suggest that the threshold for arrest is actually lower.

 

If someone is being abusive or obstructive to the extent that they are hindering or preventing the IO from carrying out their duties then they are arrestable. I am not sure why BoP would be suitable in such circumstances? Arresting for obstruction would offer the IO more protection.

 

A quick look at caselaw for obstruction suggests

that obstruction can be defined as an act or omission which makes it more difficult for an Officer to carry out their duty (Hinchcliffe v. Sheldon [1955], Rice v. Connolly [1966] )

 

Does a hostile crowd make it more difficult for an IO to carry out their duty? I would say 'yes' if someone is threatening violence and that causes fear.

 

The central plank in much case law is whether the Officer was acting in the course of his duties or not. This would need to be evidenced by the IO for any such offence.

 

The case of Metcalf v CPS is also interesting, as it ruled that an Officer acted lawfully in pushing someone away under S.3 of the CLA to prevent them continuing to commit the offence of obstruction. The principle being that you do not have to arrest and you can use force to prevent continuation.

 

I personally wouldn't bother trying to understand how BoP could be used when the offence of obstruction has so much more potential.

 

I would just advise on writing up a really good statement.

 

 

 

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Cathedral Bobby

Excellent post Parochial

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ParochialYokal

*blushes*

Thanks :)

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Jedi Knight
On ‎30‎/‎07‎/‎2017 at 12:10, ParochialYokal said:

 

I cannot understand why an IO would want to arrest for BoP? 

 

Less paperwork for starters I would imagine. Release the person once they'd done what they came to do. Only notes required, no case file or follow up court cases.  

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