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"
This is effective from 1st January 2006.
Code G of the
Codes of Practice
governs police powers of
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
lawful arrest requires two elements:
A person’s involvement or suspected
involvement or attempted involvement in the commission of a criminal
Reasonable grounds for believing that the
person’s arrest is necessary.
All offence carry the risk of arrest if
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
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
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
(v) causing an unlawful obstruction of the highway;
(d) to protect a child or other vulnerable person from the person in
(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
Search on arrest
Section 32(1) & (2)(a) of PACE has not been amended by the
Organised Crime and Police Act 2005 and still states:
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
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.
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  CA
"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 
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  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
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  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
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
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.)
Designated police employees
Police powers of arrest have been significantly
extended by the
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.
Explanatory notes, commencement
Codes of Practice and Guidance
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
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
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  DC
In Alderson v Booth  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
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