A person suspected of breaching COVID-19 regulations is not required by law to give the police their name and address, a recent appeal (Neale v DPP [2021]) has ruled. 

However, it is imperative to ensure officers are fully versed in their powers of arrest and are aware that, irrespective of this recent appeal, they are not prevented from arresting summary offenders using Section 24 of the Policing and Criminal Evidence Act 1984. This particular arrest arose out of the Welsh Health Protection (Coronavirus, Restrictions) (Wales) Regulations (Regulations) and not the Coronavirus Act 2020. The Act is primary legislation which contains emergency powers relating to COVID-19 and health protection and was passed by the legislative bodies of the UK. The Regulations are secondary legislation and derive their authority from the primary legislation.

Background

Mr Neale had his conviction for obstructing a police officer (by failing to give his details for the purposes of issuing a fixed penalty notice (FPN)) quashed by the High Court.

On 23 April 2020, the UK was in the midst of the first national lockdown. Mr Neale, a 60-year-old homeless man was sitting on a bench in Newport city centre waiting for an MOT test on a friend’s vehicle to be completed. He was approached by police community support officers and challenged as to why he was in public during the lockdown.

He was then asked to provide his details so a FPN could be issued due to a breach of the Regulations. Mr Neale declined to provide this information. A police officer attended and requested Mr Neale’s name and address. He refused and was then arrested and taken to a police station.

Mr Neale was prosecuted under the Regulations for leaving home without reasonable excuse and obstructing a police officer (contrary to Section 89(2) of the Police Act 1996) by refusing to provide his name and address so a FPN could be issued to him.

At the Magistrates’ Court, Mr Neale was acquitted of the offence. The ban on leaving home set out in the Regulations does not apply to homeless people.

The Court held there was an implied duty in the Regulations to give personal details to the police when asked, because otherwise they considered the Regulations would otherwise be somewhat unfeasible.

Mr Neale appealed to the High Court.

The judgment

The essential issue in the appeal was whether Mr Neale’s refusal to give his details to the police officer was capable of amounting to ‘wilful obstruction’ for the purposes of Section 89(2) of the Police Act 1996.

The High Court quashed the conviction and held as follows:

• Mr Neale was under no common law obligation to give the police his name and address.
• The right to silence is not reserved for the innocent and those beyond suspicion only.
• Mr Neale was not under a statutory obligation pursuant to the Regulations to give his name and address to the police – the Regulations do not expressly create such an obligation.
• Mr Neale’s refusal to provide his details foiled the police officer’s intention to issue an FPN but did not render the legislative scheme unworkable.
• Mr Neale’s case was distinct from other cases where wilful obstruction had been found and indeed none of those cases were about compelled speech. The right to remain silent is a particularly important right. In addition, an obligation to give a name and address to the police would engage Articles 6 and 8 of the European Convention on Human Rights.
• Carefully defined powers have been conferred on police officers by statute and the court should be wary of expanding them by implication. Where the legislature intended to give police officers the power to require a person to give his name and address and to impose a corresponding duty on the individual to give that information, it has done so expressly. It follows that the absence of an express obligation to give a name and address in the Regulations powerfully demonstrates that it does not exist.
• Mr Neale was not required to give his name and address to the police, and it follows that his refusal to do so was not wilful.

Lessons to be learnt

This decision is a reaffirmation of the position in Rice v Connolly 1966. There is no general common law duty to assist the police and a person cannot be guilty of wilfully obstructing a police officer by remaining silent when questioned, if there is no legal duty to answer questions.

Interestingly the arresting officer would not have been aware that the Appellant was homeless owing to his refusal to provide his details, so they would have been unaware the Appellant could not be held accountable for ‘leaving home’ under the Regulations.

The information was only brought to light by the Appellant’s legal representatives and presented to the Crown Prosecution Service (CPS), not officers, the prosecution was not discontinued by the CPS at that stage. This is a clear example of the practical difficulties faced by police officers to enforce regulations placed onto the statute book quickly, allowing little time for training.

However, if there are reasonable grounds for suspecting an offence, officers may still utilise the powers afforded in Section 24 of PACE. This allows for an officer to arrest an individual if it is necessary to do so to ascertain the person’s name and address. As such any individual who refuses to provide their details for the purposes of a FPN, under the Regulations or indeed any other legislation, remains at risk of being arrested for an offence.

It is likely that, following this decision, civil actions arising out of arrests under the Regulations will be pursued. It will be key to consider the specific powers of arrest used by the arresting officer.

A review by the CPS found that 359 of 1,252 charges last year under laws brought in to aid public health measures were withdrawn or quashed in court.

Emelia Gahan (emelia.gahan@plexuslaw.co.uk) is a Solicitor at Plexus Law. Emelia works within the Public Sector Team and has a particular interest in defending civil actions made against police forces.