Cuffed by a Council Patrolman & now you’re in the frame for Assault? What if you were defending yourself against unlawful force? Read on.

Does anybody else find it troubling that Islington Council Parkguard Nightsafe patrols are running around with handcuffs?

Do people actually want private company contractors depriving people of of their liberty?

How did we get to the stage where people who aren’t police – and don’t have police powers – feel entitled to use handcuffs on other civilians?

Back in 2014, Islington Council imposed a Late Night Levy on pubs and clubs to address anti social behaviour in areas like Upper Street and Highbury Corner. The Council said they were going to use this tax money to pay for security patrols. At the time, Councillor Paul Convery said:

“One way we will spend the money is to buy a service from a security firm.

They will pick up drunks, help them get home, stop them getting hurt and falling over, that kind of thing.

Many of them will be ex-police or ex-military. Big, gentle guys who can be tough when they need to.

They are not bouncers but they are the next best thing to police.

They can perform citizens’ arrests and can use minimal force – and they will patrol until 6 am.

Does anything give Parkguard employees the right to use handcuffs?

Islington Council is able to form a partnership with Parkguard to provide these services under the Police Reform Act, 2002 – and the Act enables the Commissioner of the Metropolitan Police to establish and maintain a Community Safety Accreditation Scheme. Parkguard Ltd are accredited by the Metropolitan Police to provide these community safety services on behalf of local authorities and other bodies. Parkguard patrolmen employees in this context are considered, “members of the extended police family”.

While the Met accredits organisations like Parkguard to provide these services to councils, that accreditation does not give Parkguard employees the power to use handcuffs. The Police Reform Act does not give these extended police family members a right to use handcuffs.

The Police Reform Act does not give Parkguard patrolmen any special powers to arrest and detain people – their powers to arrest and detain are limited to s24A of the Police and Criminal Evidence Act, 1984 and the common law power of arrest for Breach of the Peace. As you’ll see below, situations where the need to detain, much less lawfully use handcuffs, are rare.

If you decided you needed to detain another civilian, how would you know you’re doing it right?

Parkguard employees aren’t trained by the police – but the training Parkguard receive and provide is recognised by the Metropolitan Police in fulfilment of the requirements of the Community Safety Accreditation Scheme. I understand that Parkguard provide their patrolmen with training in the use of force, including the use of handcuffs.

However, and in their guide to the Community Safety Action Scheme, the Met themselves say:

Accredited people do not have any specific power to detain. They do have the general citizen’s power of arrest but there is no expectation that they shall exercise this power as part of the scheme.

When could a Parkguard patrolman potentially use handcuffs?

In limited circumstances, ordinary citizens can arrest other people under the Police and Criminal Evidence Act, 1984 as per section 24A:

Arrest without warrant: other persons

(1) A person other than a constable may arrest without a warrant—
(a) anyone who is in the act of committing an indictable offence;
(b) anyone whom he has reasonable grounds for suspecting to be committing an indictable offence.
(2) Where an indictable offence has been committed, a person other than a constable may arrest without a warrant—
(a) anyone who is guilty of the offence;
(b) anyone whom he has reasonable grounds for suspecting to be guilty of it.
(3) But the power of summary arrest conferred by subsection (1) or (2) is exercisable only if—
(a)the person making the arrest has reasonable grounds for believing that for any of the reasons mentioned in subsection (4) it is necessary to arrest the person in question; and
(b) it appears to the person making the arrest that it is not reasonably practicable for a constable to make it instead.
(4) The reasons are to prevent the person in question—
(a) causing physical injury to himself or any other person;
(b)suffering physical injury;
(c) causing loss of or damage to property; or
(d) making off before a constable can assume responsibility for him.

This means that PACE only gives powers of arrest to civilians for indictable offences only. “Indictable” offences include Theft but do not include shoves or punches with no injury. The reference to “summary arrest” under this Act means, “arrest without a warrant”.

It further means that an indictable offence must have been committed. Suspicion that an indictable offence has been committed is not enough. (The use of this civilian power of arrest comes at a big risk – especially if the person you arrested is later acquitted. See R v Self [1992] 1 WLR 657).

Section 26 of PACE repealed all other civilian powers of arrest – except for the one remaining common law power for a civilian to arrest another for Breach of the Peace (as per DPP v Orum [1989] 1 WLR 88).

A Breach of the Peace may occur where harm is done or is likely to be done to a person, or their property in their presence, or they are in fear of being harmed through assault, affray, riot, or other disturbance as per R v Howell [1982] QB 416, QBD.

Can a civilian lawfully detain another without arresting them?

No. “What about shoplifters?”, you ask. As Theft is an indictable offence, it’s perfectly legitimate for security staff to detain someone they’ve seen shoplifting for the purpose of an arrest.

Why on earth would a Parkguard patrolman use handcuffs?

Given the highly limited circumstances where a citizen has the power in law to arrest –  together with the Met’s own expectation that accredited persons will not need to arrest or detain under the CSAS scheme, it does make one wonder why Parkguard kits their Night Safe employees out with handcuffs. Remember Cllr Convery’s statement that, “They can perform citizens’ arrests and can use minimal force”. Have these patrolmen got a case of “mission creep” where they are using handcuffs on a regular basis?

Here’s the problem:

Even if a Parkguard Islington Night Safe employee were to arrest / detain a fellow civilian for an indictable offence or Breach of the Peace until the police arrive, the issue then becomes whether it is necessary, reasonable and proportionate for them to use force to do so.

Here’s what the College of Policing have to say about it:

“To be compatible with the ECHR, action must be necessary, proportionate, legal and carried out for one of the purposes set out in Articles 9(2) or 10(2), eg, to prevent disorder or crime. See Human Rights Act 1998”.

Here’s the reason why – and what every person using handcuffs on someone else must understand:

The use of handcuffs is a potential assault

Any unlawful application of force on another person is an assault.  The use of handcuffs is a use of force – and will therefore be an assault unless it can be legally justified. That means you don’t just need a right in law to use force (i.e. handcuffs), that use must also be reasonable, necessary and proportionate in the circumstances.

If the user of the handcuffs cannot justify his use of handcuffs – or if the use of handcuffs was unnecessary or disproportionate, it’s the handcuff user (and possibly Parkguard themselves) who may be facing liability in Criminal and / or Civil law for an assault.

What if you are a pub-goer or even Parkguard patrol employee who’s looking down the barrel of an assault charge?

Get legal advice. Maybe you’re a pub goer and resisting a patrolman’s attempt to put you in handcuffs. Just because someone is wearing an Islington Council hi-viz jacket doesn’t mean that they can do what they want. You may have a defence.

The reason why it is so important to obtain objective legal advice from someone with experience in police outsourced powers is because without that expertise and knowledge, you won’t, “know if you are guilty or not”  or if your lawyer is doing it right until after your trial.

NB

If, hypothetically, a Parkguard Islington Night Safe patrol officer were to unlawfully handcuff someone while on patrol, the upshot of s42 of the Police Reform Act, 2002 is that liability for that unlawful conduct would rest with Parkguard Ltd and patrol officer himself – not the Metropolitan Police.