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Police powers - powers of arrest

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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 "necessary criteria" applies.  This is effective from 1st January 2006.

Code G

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 police powers of arrest are a extensive, they apply to every offence, not just serious offences so there is a need for such a balance.

 

Right to liberty

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.

 

Arrest must be justified

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.

 

Non-discriminatory and proportionate

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.

 

When the power of arrest is exercised it is essential that it is exercised in a non-discriminatory and proportionate manner.

 

Elements of Arrest under section 24 PACE

A lawful arrest requires two elements:

  1. A person’s involvement or suspected involvement or attempted involvement in the commission of a criminal offence;
    AND

  2. Reasonable grounds for believing that the person’s arrest is necessary.

All offence carry the risk of arrest if necessary

Sections 110 and 111 of the Serious Organised Crime and Police Act 2005 substitute sections 24 and 25 of PACE, replacing the former array of arrest powers with a rationalised power whereby all offences are arrestable subject to necessity criteria.
 

So, section 24 is now amended and section 25 ceases to have effect.

 

Power of arrest

The grounds for making an arrest are that a constable has reasonable grounds to believe that a person is committing, has committed or is about to commit an offence and importantly, that an arrest is necessary for any of the criteria listed in Section 110 of the Serious Organised Crime and Police Act 2005.

 

"Necessary Criteria"

The 9 reasons are-

(a) to enable the name (and address) of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person's name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name);
(b) ... ;

 
(c) to prevent the person in question-

(i) causing physical injury to himself or any other person;
(ii) suffering physical injury;
(iii) causing loss of or damage to property;
(iv) committing an offence against public decency (subject to subsection (6)); or
(v) causing an unlawful obstruction of the highway;

(d) to protect a child or other vulnerable person from the person in question;

(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question;

(f) to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.

(6) Subsection (5)(c)(iv) applies only where members of the public going about their normal business cannot reasonably be expected to avoid the person in question.

Information to be given on arrest

Arresting officers are required to inform the person arrested that they have been arrested, even if this fact is obvious, and of the relevant circumstances of the arrest in relation to both elements and to inform the custody officer of these on arrival at the police station.

 

So, a PC might say "I am arresting you for assault and to prevent you causing injury to any other person".

 

Unless impossible to do so he must then caution the arrested person.

“You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.”

Search on arrest

Section 32(1) & (2)(a) of PACE has not been amended by the Serious Organised Crime and Police Act 2005 and still states:

Section 32(1):

A constable may search an arrested person, in any case where the person to be searched has been arrested at a place other than a police station, if the constable has reasonable grounds for believing that the arrested person may present a danger to himself or others.

Section 32(2) Subject to subsections (3) to (5) below, a constable shall also have power in any such case-
(a) to search the arrested person for anything -
(i) which he might use to assist him to escape from lawful custody; or

(ii) which might be evidence relating to an offence;

 

The concepts of "arrestable" and "serious arrestable offences" no longer apply

All offences are now arrestable the previous concepts of arrestable and serious arrestable offences no longer apply.

 

This has an impact on the various “trigger powers” that accompanied these offences As with the changes to arrest the use of “trigger powers” will also be governed by the concept of necessity whereby authorisation must only be given where the use of such powers are necessary and proportionate to the needs of the investigation.

 

However, these trigger powers can only be used for indictable offences (i.e. an offence which can be prosecuted either way or on indictment only).

 

Retained powers, not covered by s110

By removing the concept of arrestable offences the legislators have found a way through the myriad of arrest provisions that existed before 2006, which included preserved powers, offences declared by statue and a host of other confusing powers.

 

A very limited number of specific powers of arrest have been retained in their existing form. These primarily relate to powers of arrest in connection with transport offences.

 

There are others, for example,

Section 18 of the Police and Justice Act 2006 provides the police with a specific power to arrest and detain offenders suspected of non-compliance with the conditions of a conditional caution without reasonable excuse.

 

Breach of the Peace

Breach of the Peace

The power to arrest for a breach of the peace is unaffected by SOCAP Act 2005 because a breach of the peace is not an "offence".

 

R v Howell [1982] CA

Watkins LJ

"We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. "

Williamson v Chief Constable of the West Midlands Police [2003]

A breach of the peace is not a criminal offence within the context of PACE; accordingly, the provisions of PACE do not apply to arrest and detention for causing a breach of the peace
 

Albert v Lavin [1981] HL

"The well-established principle that to detain a man against his will without arresting him was an unlawful act and a serious interference with a citizen's liberty was subject to an equally well-established exception (which was not confined to detention effected by a police constable in the execution of his duty) that it was the right and duty at common law of every citizen in whose presence an actual or reasonably apprehended breach of peace was being or about to be committed to make the person who was breaking or threatening to break the peace refrain from so doing and, in appropriate cases, to detain him against his will."

R (Laporte) v Chief Constable of Gloucestershire Constabulary (2006) HL

[Police powers – detention - breach of the peace - police not entitled to send coach containing protesters back to London]
D, the police, stopped and searched two coaches, on board one of which was the claimant (Jane Laport). The coaches were travelling to a US air base to demonstrate against the war in Iraq. The police said they feared a breach of the peace would occur at the destination. Therefore, they ordered the coaches to return to London with a police escort.

Held: Police acted unlawfully since no such breach was about to occur.


The common law power to prevent a breach of the peace is enjoyed by every constable and citizen. It is subject to a duty to seek to prevent by arrest or other action short of arrest any breach of the peace occurring in his presence, or any breach of the peace which, having occurred, was likely to be renewed, or which was about to occur. The leading authority being Albert v Lavin [1982] HL.
 

The Court acknowledged that there was no absolute requirement that a breach of the peace had to be ‘imminent’, although imminence was relevant to what was reasonable in the circumstances.

 

Where a reasonable apprehension of an imminent breach of the peace existed then the preventive action taken must be reasonable or proportionate. It was not reasonable for the police to believe that there would be disorder once the coaches reached RAF Fairford. Extensive precautions had been put in place there.
 

Even if, some of those on board the coaches reasonably appeared to be about to breach the peace, there was no reasonable ground to infer that they all were, or that the claimant was.
 

The approach of the English common law to freedom of expression and assembly was to permit that which was not prohibited. The Human Rights Act 1998, represented a constitutional shift, but the right to freedom of expression and peaceful assembly could be restricted if the demonstration was unauthorised or unlawful or if conduct was such as actually to disturb public order.

Although acknowledging policing such circumstances was problematic, they said that if the public interest required that the power of the police to control demonstrations of the present kind should be extended, any such extension should be effected by legislative enactment and not judicial decision.

C won
 

As there is now no concept of an "arrestable offence" or "serious arrestable offence", the trigger for police roadblocks or denying a suspect access to a solicitor is whether the offence is "indictable". 

(Indictable means triable on indictment which means triable n the Crown Court.  Some offences are triable either in the Magistrates' Court or the Crown Court and are known as "either-way" offences.

An offence such as theft is triable either way, as it is triable on indictment it is an indictable offence.  Offences such as robbery are triable only on indictment and are "indictable only" offences.)

 

PACE Trigger Power

 

Authorisation

Required

Previous

Threshold

Threshold

(from 1.1.06)

s4 – Road checks

Superintendent

Serious Arrestable

Indictable

s8 – Search warrant

Magistrate

Serious Arrestable

Indictable

s17 – Entry for the purpose of arrest

n/a

 

Arrestable

 

Indictable

 

s18 – Entry and search after arrest

Inspector

 

Arrestable

 

Indictable

 

s32 – Search upon arrest

n/a

 

Any offence

 

Indictable

 

s42 – Apply for extended detention (to 36hrs)

Superintendent

Arrestable

 

Indictable

 

s43 – Warrants for further detention (up to 72hrs)

Magistrate

 

Serious Arrestable

 

Indictable

 

s44 – Extension of warrants for

further detention (up to 96hrs)

Magistrate

 

Serious Arrestable

 

Indictable

 

s56 – Delay right to have someone informed of arrest

Inspector

 

Serious Arrestable

 

Indictable

 

s58 – Delay access to legal advice

Superintendent

Serious Arrestable

Indictable

 

Designated police employees

Police powers of arrest have been significantly extended by the Police Reform Act 2002.  The general effect of s38 of the Act is to allow the chief officer of police to designate certain employees as 'officers' who can rely on the protection of police powers.

 

Original sources

Explanatory notes, commencement

Codes of Practice and Guidance

SOCAP

What is "Arrest"

False imprisonment a crime and a tort

Keeping someone against their will is both a crime and a civil wrong (at Tort). Loss of liberty, even for a short time, is considered an imprisonment.
 

Legal justification

There is no requirement to show unlawfulness or malice; if the claimant proves he was imprisoned by the defendant, then the defendant has to prove a legal justification.
 

Such legal justification would be an arrest authorised in law by a police constable.

 

Meaning of "arrest"

“Arrest consists in the seizure or touching of a person's body with a view to his restraint; words may, however, amount to arrest if, in the circumstances of the case, they are calculated to bring, and do bring, to a person's notice that he is under compulsion and he thereafter submits to the compulsion.”

From Halsbury's Laws of England

An arrest may be effected with or without a warrant.
 

Alderson v Booth [1969] DC

In Alderson v Booth [1969] DC it was established that it has been made clear to a person that he is under arrest.

 

Clear words are necessary to bring home to defendant that under compulsion. Simple words such as "I arrest you" are preferable to a Constable saying "I shall have to ask you to come to the police station."
 

False imprisonment is the intentional or reckless restraint of someone’s freedom of movement from a particular place.

 

R v Willoughby (1998) CA

In R v Willoughby 1998, the Court of Appeal upheld a life sentence against a repeat sex offender for falsely imprisoning an 18 year old student at Southampton University in a toilet cubicle.  At knifepoint, he made her perform acts of gross indecency.

 

The imprisonment lasted only 20 minutes but the fundamental reason for the appellant's conduct was that he falsely imprisoned her for non-consensual sex.

 

Kidnapping

Closely connected to "False Imprisonment" is "Kidnapping"; taking another person by force or fraud, without their consent and “without lawful excuse”. This can be just a few yards.

The law will seldom intervene where parents control young children, or schools or prisons act in the place of parents. Where a parent stops a child from returning to where a court has ordered that the child shall live, legal action could follow. Similarly, the authorities will step in where a parent tries to take a child back to the country of origin against their will. The
Child Abduction Act 1984 is used in such cases.

 

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