Powers of Arrest

There have in recent years been a slew of cases in which it has been successfully argued that an arrest was unnecessary, and therefore unlawful, because the suspect was prepared voluntarily to assist the police with their investigations:  C, R (on the application of) v ‘A’ Magistrates Court (2006) EWHC 2352 (Admin).

The previous doctrine / practice of police officers arresting first and asking questions later is no longer a lawful option.

On 29/02/2011 the High Court ruled that common practice of arresting voluntary attenders at police stations is unlawful unless there are clear reasons why the arrest is necessary. The High Court (QBD) handed-down judgment in a case concerning a teacher who was unlawfully arrested; this is the first substantive case to deal with the revised s24 PACE 1984 and the necessity requirement being met prior to an arrest.  The judgment is particularly significant for the guidance it gives in respect to the necessity for arrest, applying an adapted Castorina test; the police have to establish that (i) the arresting officer subjectively believed he/she had proper grounds for believing that arrest was necessary, and (ii) that the grounds were objectively reasonable. If they fail on either limb the arrest will be unlawful. If they establish both limbs the arrest can only be impugned on Wednesbury grounds.  This means that the police will no longer be able to rely on pro forma phrases to justify the necessity for arrest, and it appears that in the majority of cases where a suspect attends at the police station by appointment the necessity for arrest will not be made out.

In Alexander Bull Farrelly and Fox [2009] NIQB 2, the court held that, when carrying out a criminal investigation, every officer must consider if it is necessary to make an arrest and have regard to all relevant circumstances. There must be some evaluation of the feasibility of achieving the object of an arrest by alternative means. It does not require that there is no viable or practical alternative. An officer who therefore arrests as a matter of course will be acting unlawfully and strong representations should be made.

The Serious Organised Crime and Police Act 2005 substitutes the powers of arrest found in section 24 and 25 of PACE and makes all classes of offence "arrestable" if the "necessity criteria" applies. Code G of the Codes of Practice governs police powers of arrest.  The need for the code is to balance individual rights and the need for investigative powers by the police.

The use of powers of ‘arrest must be fully justified’ and officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means.

The exercise of arrest powers is subject to a test of necessity based around the nature and circumstances of the offence and the interests of the criminal justice system.  Arrest must never be used simply because it can be used. 

When the power of arrest is exercised it is essential that it is exercised in a non discriminatory and proportionate manner. Code G Before exercising a power of arrest Police Officers are now required to be satisfied that there are REASONABLE GROUNDS FOR BELIEVING that, for any reason set out in Section 24(5), it is ‘NECESSARY’ to arrest the person in question.

Code G, Note for Guidance 3 

  • Suspected offence’s nature.
  • When and where it was committed.  
  • The suspect must also be informed of the reason or reasons why arrest is considered necessary.  
  • Vague or technical language should be avoided.

Records to be made of arrest in the arresting officer’s pocket book or by other methods (Code G 4)

Code C 10.3 which states that a person who is arrested must be informed as soon as practicable after their arrest of the fact of their arrest and the grounds for it.  Note for Guidance 10B clarifies that this means that the suspect must be informed of the nature of the suspected offence, when and where it was committed and the reasons why arrest is considered necessary.

The Court of Appeal accepted at paragraph 73 of its judgment that if arresting officers fail to exercise any discretion when deciding to arrest, but  do so, as they always do, simply because they reasonably suspect the person whom they were arresting to have committed the offences in question then such an approach would be unlawful. See Cumming v Chief Constable of Northumbria Police [2003] EWCA 1844, per Latham LJ at paras 42-44; Jason Paul v Chief Constable of Humberside Police[2004] EWCA Civ 308, per Brooke LJ, at paras 34 -37; and Neilson v A-G[2001] 3 NZLR 433, CA, per Richardson P, giving the judgment of the Court at paras 30 and 40.

PACE Code of Practice G provides:

  • 1.1 This Code of Practice deals with statutory power of police to arrest persons suspected of involvement in a criminal offence.
  • 1.2 The right to liberty is a key principle of the Human Rights Act 1998. The exercise of the power of arrest represents an obvious and significant interference with that right.
  • 1.3 The use of the power must be fully justified and officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means. Arrest must never be used simply because it can be used. Absence of justification for exercising the powers of arrest may lead to challenges should the case proceed to court. 

s24(4)-(5) has been clarified by the Court of Appeal in Hayes v Chief Constable of Merseyside Police [2011] EWCA Civ 911. The Court’s conclusions can be summarized as follows:

  • The relevant consideration is what was in the mind of the arresting officer;
  • The arresting officer must subjectively believe that the arrest is necessary for the subs (5) reason;
  • In addition, the arresting officer’s decision to arrest “must be one which, objectively reviewed afterwards according to the information known to him at the time, is held to have been made on reasonable grounds”;
  • This does not mean that the arresting officer has to actively consider all possible courses of action – taking into account all relevant considerations and excluding all irrelevant considerations. However, the arresting officer should give at least a “cursory consideration” to options other than arrest, but only because “the officer who has given no thoughts to alternatives to arrest is exposed to the plain risk of being found by a court to have had, objectively, no reasonable grounds for his belief that arrest was necessary.”
  • By the same token, if an arresting officer fails to consider PACE Code G para 1.3 (“…officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means”) this does not automatically make the arrest decision unlawful. Such a failure merely acts as an indicator that the officer did not have objectively reasonable grounds for concluding that the arrest was indeed necessary.

There is some suggestion in Hayes (see para 36 and approval of Wilding) that this effectively amounts to a Wednesburystandard – i.e. that the decision to arrest will only be found to be unlawful if the conclusion that arrest was necessary was ‘so unreasonable that no reasonable arresting officer’ would have come to it. In my opinion this would be a misinterpretation of the statute:

The language of s24(4) provides a straightforward reasonableness test – not the enhanced threshold established in Wednesbury;

The equivalent reasonableness test at s24(3) is not characterised as imposing a Wednesbury standard;

As an individual’s liberty is at stake, a fundamental human right, conventional Wednesbury review would not be appropriate (see ex parte Daly [2001] 2 AC 532).

If the Officer believes an arrest is necessary, clear reasons should be documented in the Officer’s Pocket Book and on the Custody Record.  

Simply reciting “Prompt and effective investigation” is insufficient, specific reasons must be identified.

A person can be interviewed under the provisions set out under Section 29 of PACE. In these circumstances, if a person is willing to give a voluntary interview, an arrest will not normally be necessary unless there are other factors involved (for example cases where a Section 18 search needs to be undertaken or where there are other suspects at large).

The powers of arrest were not changed to enable officers to arrest all suspects in all circumstances.

Justifying the necessity to arrest in such circumstances is not an option or best practice – it is the law.”

In the case of Lord Hannigfield v Essex Police [2013] EWHC 243 (QB), in his ruling, Mr Justice Eady said that summary arrest was never going to have any impact on the prompt and effective investigation of Lord Hanningfield's council expenses. 

In his decision, Mr Justice Eady said he had considered whether the arrest was necessary "to allow the prompt and effective investigation".

"The prospect of his [Lord Hanningfield] attempting to 'bully' any of the police officers visiting his home that morning does seem somewhat remote," said Mr Justice Eady in his written statement.

"It was further mooted that, unless he was arrested, Lord Hanningfield might seek to destroy or conceal evidence relating to his expenses," he said. "It seems that the officers were under the (mistaken) impression, for example, that he was still in possession of a council computer."  Mr Justice Eady said he felt the police officer concerned believed the arrest was necessary. But he said: "I have come to the conclusion that the requirement of 'necessity' as laid down by Parliament has not, on any realistic interpretation of the word, been met."