Police Powers of Arrest within PACE

Essay Questions

• The circumstances in which a police officer may arrest a person under the new version of s.24 of PACE.
• The significance of Code of Practice G and the meaning of ‘reasonable suspicion’.
• The legal consequences which may flow from a failure to comply with the requirements of s.28 of PACE.

The Police and Criminal Evidence Act (PACE) and the PACE codes of practice provide the core framework of police powers and safeguards around stop and search, arrest, detention, investigation, identification and interviewing detainees

PACE sets out to strike the right balance between the powers of the police and the rights and freedoms of the public. Police Officers discover crime and bring criminals to justice. “Lord Parker CJ said that a police officer’s duty is to take necessary steps to keep the peace, prevent crime or protect people from criminal injury or their property from criminal damage.”

The Serious Organized Crime and Police Act 2005 (often abbreviated to SOCPA) is an Act of the Parliament of the United Kingdom aimed primarily at creating the Serious Organized Crime Agency, it also significantly extended and simplified the powers of arrest of a constable and introduced restrictions on protests in the vicinity of the Palace of Westminster. It gives police officers the power to arrest a person, firstly they would have to find out the person’s name and address, they also have the powers to prevent the person from causing or suffering physical harm or suffering to themselves or any other person, to prevent them from damaging property or causing loss to the property, to prevent them from committing any offence against public civility and to prevent them from causing any unlawful obstruction of the highway. They have the power to protect a child or other vulnerable person. Allow the quick and effective investigation of the offence the arrested person is suspected of committing or the conduct which has encouraged their arrest and to prevent any prosecution for the offence from being delayed by the disappearance of the person being arrested.

According to the Section 24 of PACE, An offence for which the penalty was fixed by law is called an ‘Arrestable offence’ – e.g. Murder. A person could be sentenced to prison for five years or more for a first offence – e.g. serious offences such as rape, robbery. To be arrested for an arrestable offence a person should be in the act of committing an arrestable offence, a person should have committed an arrestable offence or a person should be about to commit an offence. Both Police officers and private citizens had the power to arrest any person sensibly suspected to be responsible for an offence that had been or was being committed, But only police officers could make an arrest if they reasonably suspected that an offence had been occurred.

The reason behind the reformation of Section 24 of PACE was that In August 2004, the Home Office published a consultation paper entitled Policing: Modernision Police Powers to Meet Community Needs.

Section 2 of the paper was about the powers of arrest and the concept of seriousness. According to Home Office, PACE achieved some accomplishment in clarifying powers of arrest but the basis of arrest was “diverse”.

Home Office said that there was “confusing range of approaches to exercising this fundamental and potent power”.

According to the new version of section 24 of PACE the police officer may arrest a person:

S24: Arrest without warrant: constables

(1) A constable may arrest without a warrant –

- (a) anyone who is about to commit an offence;

- (b) anyone who is in the act of committing an offence;

- (c) anyone whom he has reasonable grounds for suspecting to be about to commit an offence;

- (d) anyone whom he has reasonable grounds for suspecting to be committing an offence.

(2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.

(3) If an offence has been committed, a constable may arrest without a warrant –

- (a) anyone who is guilty of the offence;

- (b) anyone whom he has reasonable grounds for suspecting to be guilty of it.

(4) But the power of summary arrest conferred by subsection (1), (2) or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.

(5) The reasons are –

- (a) to enable the name 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) correspondingly as regards the person’s address;

- (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.

24A Arrest without warrant: other persons:

(1) A person other than a constable may arrest without a warrant-

- (a) anyone who is in the act of committing an indictable offence;

- (b) anyone whom he has reasonable grounds for suspecting to be committing an indictable offence.

(2) Where an indictable offence has been committed, a person other than a constable may arrest without a warrant-

- (a) anyone who is guilty of the offence;

- (b) anyone whom he has reasonable grounds for suspecting to be guilty of it.

(3) But the power of summary arrest conferred by subsection (1) or (2) is exercisable only if-

- (a) the person making the arrest has reasonable grounds for believing that for any of the reasons mentioned in subsection (4) it is necessary to arrest the person in question; and

- (b) it appears to the person making the arrest that it is not reasonably practicable for a constable to make it instead.

(4) The reasons are to prevent the person in question-

- (a) causing physical injury to himself or any other person;

- (b) suffering physical injury;

- (c) causing loss of or damage to property; or

- (d) making off before a constable can assume responsibility for him.

111 Powers of Arrest: Supplementary

Schedule 7, which supplements section 110 by providing for the repeal of certain enactments and by making further supplementary provision, has effect.

The main difference between the old Section 24 and the new section 24 power is that the power of arrest now relates to any offence and not just an arrestable offence as it used to be. The new arrest powers can be used only if the constable has sensible grounds for having confidence in that for any of the reasons stated in subsection (5) it is essential to arrest the person in question.

‘Reasonable Suspicion’ means an objectively sensible suspicion that is based on specific facts or circumstances and that rationalizes stopping and sometimes searching a person believed to be involved in unlawful doings at the time. Powers of arrest have been centred on the need for a police officer to have reasonable suspicion of a person’s envelopment in illegal action before they can be applied. In Dumbell v. Roberts [1944] 1 All ER 326, Scott LJ explained:

“The power possessed by constables to arrest without warrant … provided always that they have reasonable grounds for their suspicion is a valuable protection to the community; but the power may easily be abused and become a danger to the community instead of a protection. The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt” (at 329).

It is obvious from this statement that the resolution causing the need for “reasonable suspicion” is that it should act as a safeguard to stop the misuse of an important power or arrests must not be made on an illogical basis. Even though the police powers of arrest in the Police and Criminal Evidence Act 1984 (PACE) have recently been the subject of alterations made by the Serious Organized Crime and Police Act 2005, the condition of “reasonable suspicion” has been taken. That condition is also a feature of other constitutional powers of arrest, such as s.41 of the Terrorism Act 2000 which authorizes a constable to “arrest without a warrant a person whom he reasonably suspects to be a terrorist”. This power of arrest remains in power in spite of the fact that the police officers now have the power to arrest a person under PACE for “any offence” rather than for an “arrestable offence” as was previously the case.

In the case of O’Hara v Chief Constable of the RUC, O, who had been arrested without warrant under the Prevention of Terrorism (Temporary Provisions) Act 1984 s.12, appealed against the removal of his appeal for criminal arrest and false imprisonment where it was found that the arresting constable, S, had reasonable grounds for doubting that O had been involved in terrorist activities. S had acted upon information given to him at a meeting attended by other police officers which was held acceptable and appropriate to constitute the state of mind required of an arresting officer under the Act.

Held, dismissing the appeal, that under s.12 an arresting officer had to have reasonable grounds for suspecting that the person he was arresting had been concerned in the commission, preparation or instigation of acts of terrorism. The test involved was twofold, requiring the arresting officer to have formed a honest and unaffected suspicion in his own mind but also that a reasonable man would have also reached the same decision based upon the information available. As the Act bestowed responsibility and liability upon individual officers, simply acting upon the instructions of a senior officer was not capable of amounting to grounds for the required suspicion. Information cannot be based upon an officer’s own observations, there has to be some further basis for suspicion, such as a report from an informer or information from an anonymous source. O’s arrest and detention was not unlawful as S was entitled to form a doubt, based upon the meeting, which would be regarded as realistic by an independent spectator.

In the case of Raissi v. The Commissioner of Police of the Metropolis [2008], the Court of Appeal was needed to conclude the lawfulness of an arrest made relevant to s.41 of the 2000 Act. Since the case turned on the sensibleness of the arresting officer’s doubt, the decision has consequences which extend beyond this particular arrest power. It therefore merits consideration.

The plaintiff commissioner appealed against an order ([2007] EWHC 2842 (QB)) that the defendant (M) was entitled to damages for illegal arrest and false imprisonment. M had been arrested and imprisoned on suspicion of connection in the terrorist attacks in the United States on September 11, 2001. The arresting officer (B) had trusted, in making the judgment whether to arrest, on the fact that more senior officers might have other additional information to which he was not aware of. M was the brother of a man (L) who was also doubted of being involved in the attacks and who lived near to M. M was not accused and was released after interview and a period of four-and-a-half days’ detention. The judge held that, although B intuitively suspected that M was concerned in the charge, planning or encouragement of acts of terrorism, he had no reasonable grounds for the suspicion, which was an unbiased requirement. The commissioner argued that the judge had made a mistake in code in concluding that B did not have reasonable grounds to suspect that M was a terrorist in the sense defined in the terrorism act 2000 s.40. In particular the judge had incorrectly reduced or dismissed the fact that B had taken into account M’s connections with a prime suspect, M was a close brother of L and the brothers had common access to each other’s houses and B had relied on the greater knowledge of his senior officers.

Appeal dismissed. B had not been told what his seniors suspected M to have done. It was not reasonable for B to conclude that his seniors must have had good grounds for suspicion of terrorism and whether B had reasonable grounds for the suspicion depended on the information that he had had, O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] A.C. 286 , Castorina v Chief Constable of Surrey Times, June 15, 1988 and McKee v Chief Constable of Northern Ireland [1984] 1 W.L.R. 1358 considered. The proposition that it was enough for the arresting officer to conclude that his seniors must have had reasonable grounds for suspicion before commanding him to arrest a suspect was unpredictable with the decision in O’Hara. Further the fact that (M) and (L) were close brothers and that they lived not very far apart and that each had access to the other’s house did not afford B reasonable grounds for suspicion that M was a terrorist.

Code of Practice G – It is the Code of Practice for the Statutory Power of Arrest by Police Officers.

The introduction of Code G on 1st January 2006 establishes the first time when codes of practice were printed regarding arrests. Some of the main characteristics of this new code will be as follows:

According to ‘1.2, the right to liberty is a key principle of the Human Rights Act 1998. The implementation of the power of arrest signifies an understandable and important interference with that right.

According to ‘1.3, the use of the power must be defended and officers using the power should consider if the essential purposes can be met by other, less interfering 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 which should be preceded to court. When the power of arrest is used it is essential that it is used in a non- discriminatory and balanced manner.

According to ‘2.1, a legal arrest requires two elements:

1. A person should be involved or suspected involved or attempted involved in the charge of a criminal offence; and
2. There should be reasonable grounds for believing that the person’s arrest is important.

According to ‘2.2, arresting officers are required to inform the person arrested that they have been arrested and of the applicable circumstances of the arrest in relation to both components and to notify the custody officer of these on arrival at the police station.

According to ‘2.4, the power of arrest is only usable if the police officer has reasonable grounds for believing that it is necessary to arrest the person. It remains an effective decision at the preference of the arresting officer as to:

• what action he or she may take at the point of interaction with the person;
• the requirement condition or criteria (if any) which applies to the person; and
• whether to arrest, report for order, grant street bail, issue a fixed penalty notice or take any other action that is open to the officer.

According to ‘2.6, spreading the power of arrest to all crimes provides a officer with the skill to use that power to deal with any situation. However, applying the requirement conditions requires the constable to inspect and explain the reason or reasons why the individual has to be taken to a police station for the supervision officer to decide whether the person should be placed in police detention.’

Paragraph 2.9 repeats the conditions specified under section 110 of the Serious Organised Crime and Police Act 2005 that may explain making an arrest. Some useful examples are reproduced as follows:

(e) allows the quick and in effect investigation of the offence or of the behaviour of the individual in interrogation. This may include cases such as:

- (i) Where there are reasonable grounds to believe that the individual has made false statements; has made statements which cannot be readily verified; has presented false evidence; may steal or destroy evidence; may make contact with co-suspects or conspirators; may intimidate or threaten or make contact with witnesses; where it is necessary to obtain evidence by questioning;

- (ii) When considering arrest in linking with an unlawful offence, there is a need to enter and search any premises occupied or controlled by a person; search the person; prevent contact with others; take fingerprints, footwear imprints, samples or photographs of the suspect.

- (iii) Confirming agreement with statutory drug testing requirements.

Records of Arrest

According to ‘4.1 The arresting constable is mandatory to record in his pocket book or by other methods used for copying evidence like the nature and settings of the offence leading to the arrest; the reason or reasons why arrest was required; the providing of the caution; anything said by the individual at the time of arrest.

Section 28 of PACE is the section that provides the information which must be given to an arrested person at the time of their arrest in order for their arrest to be lawful.

28(1) when a person is arrested, otherwise than by being informed that he is under arrest, the arrest is not lawful unless the person arrested is informed that he is under arrest as soon as possible after his arrest.

28(2) when a person is arrested by a constable, subsection (1) above apply regardless of whether the fact of the arrest is obvious.

28(3) no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as is practicable after, the arrest.

28(4) when a person is arrested by a constable, subsection (3) above apply regardless of whether the ground for the arrest is obvious.

28(5) Nothing in this section is to be taken to require a person to be informed that he is under arrest; or of the ground for the arrest,

If it was not reasonably practicable for him to be so informed by reason of his having escaped from arrest before the information could be given.

In the case of Christie v Leachinsky [1947] AC 573, On August 31, 1942, the plaintiffs, who were Liverpool police constables, arrested the defendant at his warehouse in Liverpool, without a warrant. At the time they suspected and had reasonable grounds for suspecting that he had stolen or feloniously received at Leicester a bale of fabric then in the warehouse, but they did not give this as the ground of the arrest, professing instead to arrest him on a charge of “unlawful possession” under the Liverpool Corporation Act, 1921, though in the circumstances the Act admittedly gave them no power to arrest without warrant. The defendant was taken to the police station and there detained in custody until the following day, when he was brought before the magistrate on the charge of “unlawful possession,” being by him remanded in custody for a week, and subsequently, further remanded on bail on September 8, for a further week. In an action for false imprisonment the appellants sought to justify the arrest and detention from August 31 to September 1 on the common law ground:

Held (affirming the judgment of the Court of Appeal), an arrest without warrant can be justified only if it is an arrest on a charge made known to the person arrested, and the appeal of justification therefore failed.

It is a condition of legal arrest that the party arrested should know on what charge or on suspicion of what crime he is arrested: and, therefore, just as a private person arresting on suspicion must inform the party with the cause of his arrest, so must a policeman arresting without warrant on suspicion state at the time (unless the party is already acquainted with it), on what charge the arrest is being made or at least inform him of the facts which are said to constitute a crime on his part. Even if circumstances exist which may excuse this, it is still his duty to give the information at the first reasonable opportunity after the arrest. The requirement of the situation which justifies or demands arrest without a warrant cannot justify or demand either a refusal to state the reason of arrest or misstatement of the reason.

On September 15 the respondent was again brought before the court on the charge of “unlawful possession,” which with the magistrate’s consent was then withdrawn on the ground that the Leicester police had decided to prosecute the respondent for larceny. The respondent was accordingly discharged, but instead of coming from the dock into the body of the court, he was directed by one of the appellants to descend the steps into the cells and was detained until the arrival some hours later of a Leicester policeman who charged him with larceny and took him into custody:

Held (reversing the judgment of the Court of Appeal), that the imprisonment was justified, since the respondent then knew for what alleged felony he was being detained. It is undesirable hat an arrest should be made in court, but such an arrest, although it might amount to contempt of court, will not, if otherwise justified, give rise to an action for damages, unless perhaps the person arrested is one who has a duty to be in court, such as counsel, solicitor or witness.