The Hayes Necessity Test

A two-stage test to determine the validity of an arrest was established in Hayes, a case involving an action for false imprisonment. The claimant was alleged to have been a drug dealer who had intimidated a drug user on the street and had thereby committed a common assault. A police officer arranged to meet the claimant at a railway station and arrested him upon arrival, stating that the arrest was necessary in order to obtain his mobile telephone, to detain him for further questioning and to impose bail conditions upon his release. Subsequently, the complainant withdrew  his complaint and the claimant was released by the custody officer.

The Court of Appeal, in holding that the action failed and rejecting the claimant’s argument that the arresting officer had to have considered and rejected every possible alternative to arrest, laid down a two-stage test for assessing the legality of an arrest in each case:

(i) did the arresting officer actually believe that the arrest was necessary for an identified s.24(5) reason?

(ii) if he did, was that belief objectively reasonable? It made it clear that, in applying this test, the relevant facts for considering the reasonableness of the officer’s belief are the facts known to that officer at the time of making the arrest: facts which, had he been aware of them, would have justified the arrest are not relevant.


The decisions in Richardson and Hayes prompted the Government to revise Code G and issue fresh guidance in order to ensure that the police comply with these guidelines. The following principles relating to the arrest of voluntary attendees emerge from that guidance:

(i) an officer intending to interview a suspect must consider whether voluntary attendance is a practical alternative to arrest, and, if it is, arrest will not be necessary;

(ii) when making arrangements for voluntary attendance, the officer should tell the suspect that his arrest will not be necessary if he attends a police station voluntarily to be interviewed;

(iii) when the suspect attends the police station voluntarily for interview, his arrest prior to interview will only be justified where new information has come to light since the interview arrangements were made which indicates that voluntary attendance has ceased to be a practical alternative, but it was not reasonably practicable to arrest him before he attended; and

(iv) if a suspect decides to leave before the conclusion of an interview, the position can be reconsidered, but the possibility that he might decide to do so is not a valid reason for arresting him before the interview has started.

This fresh guidance should now make it clear to the police that it is unacceptable to justify the arrest of a volunteer interviewee purely on the basis that the interviewee may leave the interview before its conclusion.

The Fall-out from an Unnecessary Arrest

Despite the fact that an arrest is not a finding of guilt, it is recorded on the Police National Computer and will generally show up on an enhanced criminal record check (ECRC). This can have numerous potential long-lasting repercussions.

Restrictions on International Travel

An unnecessary arrest might restrict an individual’s free movement when attempting to engage in international travel. For instance, immigration authorities in the United States require some arrests to be disclosed and an arrest can render an individual ineligible for the visa waiver scheme. If the individual concerned has close family or business interests in the United States, the consequences of one unnecessary arrest could be far-reaching and extremely damaging.

Employment Subject to Checks

Moreover, if, as in Richardson (where the arrestee was employed as a teacher), an individual’s employment relies on passing an ECRC, an unnecessary arrest could have a devastating impact on that person’s career and their ability to secure future employment. Moreover, if an arrestee is young, the arrest could dramatically limit their future career options.

Fingerprint and DNA Records

It is also important to remember that a person subject to an arrest will most likely be taken into custody and have their fingerprints and DNA samples taken. Although the rules provide for deletion in some circumstances, this information may potentially be kept for some time on a searchable police database.

Time for a Change?

Recent high-profile police investigations, including Operations Tuleta, Elveden and Yewtree, suggest that the police still prefer “dawn raid” arrests over inviting suspects to attend at voluntary interviews. The suspicion must be that the police culture remains unchanged: “arrest first, ask questions later”.

This is particularly worrying now that all criminal offences, no matter how serious, are subject to the power of arrest provided that the necessity criteria are met (following the amendment of s.24 by s.110(1) of the Serious Organised Crime and Police Act 2005, in force from January 1, 2006).

Not only are unnecessary arrests being used to secure the attendance of an individual at interview to allow evidence to be obtained under caution, but they also have implications on the powers of search available to the police. If the police wish to enter an individual’s private residence they should (in almost all cases) apply to a justice of the peace or Judge for a search warrant. An arrest opens up an attractive array of alternative search powers to the police, allowing the entry and search of a person’s home without the restriction imposed by a search warrant. It is understandable why the police might wish to avoid early judicial scrutiny of their investigation, particularly in light of publicly embarrassing cases of “bungled” applications for search warrants (such as those obtained by the Serious Fraud Office in the Tchenguiz case (R (Rawlinson & Hunter Trustees) v. Central Criminal Court [2012] EWHC 2254 (Admin)) that can have the effect of rendering entire investigations useless.

However, in light of Hanningfield (taken alongside Richardson and Hayes), and the recent changes to PACE Code G, it appears highly likely that more civil actions against the police will follow for unlawful arrest, detention and, in particular, unlawful search. It is vitally important, if further unnecessary arrests are to be prevented, that police should be given the training (or retraining) required to highlight the law as it stands, that they realize that the law requires a substantive change in approach rather than simply in how arrests are justified, and that practitioners, particularly those representing suspects for whom voluntary attendance is a feasible option, remind officers at every opportunity of the need to act lawfully.

Detention may at first be lawful only to become unlawful because of its duration or unreasonableness. See Mercer v Chief Constable of Lancashire [1991] 1 WLR 367 and R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704.