An Unnecessary Arrest

Lord Hanningfield was being investigated for allegations of fraud by abuse of position relating to expenses claimed when he had been leader of Essex County Council (the allegations were ultimately not pursued). Five days after his release from prison on a tagged curfew (having been convicted and imprisoned for false accounting in relation to expenses claims in the House of Lords), the police raided his home at 6:45am, “aroused him from sleep, arrested him and searched his bungalow without having troubled a Justice of the Peace for the grant of a search warrant” (ibid, at [3]).

The officers conducting the arrest and search argued that Lord Hanningfield’s arrest had been necessary under s.24(4) of PACE because he might have flown into a temper, bullied the officers and/or been uncooperative (despite his co-operation with the Parliamentary expenses investigation); because he might have sought to conceal or destroy evidence and/or collude with other suspects; because it had been more convenient to search his house under s.32(2)(b) of PACE than to obtain a search warrant under s.8; and because he was untrustworthy since he had been convicted after trial and had appealed against that conviction (a suggestion the Judge described somewhat charitably as “curious” (ibid, at [23])).

The Judge, rejecting these reasons, found that his arrest had not been necessary, and that it (along with the search and his subsequent detention in a police station) had accordingly been unlawful. He concluded that “Summary arrest was never going to have any impact on ‘the prompt and effective investigation’” and there was “no justification for bypassing all the usual statutory safeguards involved in obtaining a warrant” (ibid, at [29]).

This is the latest case in the developing area of law relating to the necessity of arrest. The trend for police to arrest suspects, even in circumstances where voluntary interviews have been arranged, is clearly unnecessary and has resulted in several successful civil actions against the police. This is in spite of the recent changes to PACE Code G (implemented by the Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes C, G and H) Order 2012 (SI 2012 No.1798), and in force from November 12, 2012; for the text of the revised Code see www.gov.uk/government/publications/pace-code-g-2012 ) reminding the police of the statutory provisions. One has to wonder whether the necessary retraining is being provided to officers in order to make sure that arrest decisions are being taken with due care and to ensure any arrest executed is necessary.

The proper interpretation and application of the necessity requirement in s.24(4) (as applied by Mr Justice Eady in Hanningfield) was also considered recently in two other cases pre-dating that decision: Richardson v. Chief Constable of West Midlands Police [2011] EWHC 773 (QB) and Hayes v. Chief Constable of Merseyside Constabulary [2011] EWCA Civ 911.