Hotels and R v ROSSO

Please be aware this post was written before December 2018 when the Mental Health Act 1983 was amended and is now largely out of date —

One aspect of those changes affected the types of location in which use of s136 MHA may be considered and this potentially affects hotel rooms.  If a person is ‘living’ in a hotel room on an indefinite basis, this post may still be relevant.  

Otherwise, see a more recent post on the topic.

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I’m getting several queries about police powers under the MHA when the venue is a hotel or a hotel room – so we need to talk about the case of R v Rosso (2003).  It is a very misunderstood case, because the verdict of the Appeal Court gives the opposite impression to the one you need to walk away with, unless you absorb the full judgment.

So attention to detail is key, here! … and, this post has been updated to reflect the law on use of s136 in dwellings and non-dwellings changing in December 2017: this seems to be generating new types of question about hotel rooms.

BACKGROUND

Mr ROSSO refused police officers access to a hotel room he was in when they attended with two doctors and an AMHP to assess and detain him under s2 of the Mental Health Act.  In the course of the confrontation where he attempted to shut the door on the police, he produced a knife and inflicted a grievous bodily harm injury to one of the officers and was arrested.  In court, he argued that as he was in a hotel room, that the police had no more right to enter it than they would have had to enter his home and that he was entitled to deny them access as trespassers without a s135(1) warrant.  As such, he was not guilty of assault, he claimed.  The Crown Court took a different view and he was found guilty of GBH assault and sentenced to a restricted hospital order under 37/41 of the Mental Health Act.

He appealed against both conviction and sentence in the Court of Appeal and it was rejected – the police officers did not need a warrant to enter the hotel room because the hotel managers had given them permission to enter.

This is the bit that everyone remembers and only today, I’ve had the question asked and been told that officers had seen a summary of this case and concluded that they could, therefore, use section 136 of the Mental Health Act in a hotel room.  No, you can’t!  You ordinarily would need a warrant to enter a hotel room – let me explain:

RIGHT OF EXLUSIVE OCCUPATION

This case is misunderstood because of one important feature, often ignored in the summaries and their interpretation, and it surrounds whether Mr ROSSO had a right of exclusive occupation –

He had paid to stay in the hotel and been placed in Room 3 for the duration of his stay.  After a few days, having discovered that the television in his room was not working, hotel staff had agreed to him using the television in Room 9 – purely for the purposes of watching television and for no other purpose.  He otherwise remained a guest in Room 3.  So the expectation of privacy he would have had in his own room, for which he had paid, was not the same as in the room where they had allowed him on a casual basis to watch television.  Were Mr ROSSO to have been found in Room 3 when the various professionals arrived, he would have been under no obligation to open the door and entitled to refuse access to it, unless anything agreed in the hotel’s general terms and conditions dictated otherwise.

This is why the ruling actually means the opposite to what judges are thought to have ruled: they were commenting on this unusual arrangement in which he has borrowed an additional room with consent – most people conclude it was generally applicable to all hotel occupations.

NEW DILEMMAS

When the law changed in December 2017, this particular scenario became the stuff of new enquiry.  Although Mr Rosso had a right of exclusive occupancy, does this now mean it is his ‘dwelling’ and can we say he is ‘living’ there?  Whatever the answer to that, does the answer stay the same when I work in London and have a travelodge for one or maybe two nights, compared to someone staying in a hotel for a fortnight’s holiday in Gran Canaria or some being temporarily housed in a hotel by the local authority as emergency accommodation?  In each example, that’s a person staying in a hotel – does the length and purpose of stay now need to affect things – how long would an officer have to work this out whilst they’re busy managing a situation where someone may be in ‘immediate need’ of care or control?!

For me, in the absence of a court ruling, it can’t be right that the nature and duration of stay affect things, because we can’t be expected necessarily to be able to check and verify all of that at 2am when responding to an incident.  For me, the privacy expectation in a hotel room is no less than that in a ‘normal’ house in that people can be quite legitimately doing all manner of deeply personal and intimate things in there(!) and should be able to do so without fearing the police will come bowling through the door expect for things which are sufficiently serious that they are using powers under criminal law, OR where Magistrates have authorised entry with a warrant, thus having someone scrutinise the reasonable of the action.

So, for me, I wouldn’t use s136 in hotel room but I’m aware of others who disagree with me.  I accept isn’t as helpful as you may need it to be(!), so whatever you do, just be honest about your rationalisation.  It is worthy of note, that when the Government wrote their guidance document about the 2017 changes, they included nothing to suggest the position had changed from what it previously was, after the Rosso ruling.

So, taking that at face value —

• You can’t use s136 in a hotel room that has been paid for by a hotel guest, in my opinion;
• You would need a warrant to force entry to the room unless another statutory provision applied.
• It’s important that officers understand the legal relationship a person in a hotel has to the room they are in.
• The rest of the hotel is like any other place – is it somewhere the public can freely access, on invitation or otherwise?  Then, s136 is available as an option.

Alles Klar?!

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Winner of the President’s Medal,
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award

 

All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2015

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I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current.  Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.

Government legislation website – www.legislation.gov.uk