Power of arrest
From CrimeLine from Andrew Keogh
See also:
- Reasonable grounds of suspicion
- Arrest: use of excessive force
- Non-Home Office police forces
- Summons to accused or warrant for his arrest
- Stop and search
- Lawful arrest
- Citizen’s arrest
- Wrongful arrest
- Police powers on arrest
- Serious Organised Crime and Police Act 2005: Part 3: Police powers etc.
Contents |
For an arrest to be lawful
- There must be sufficient grounds for the arresting officer to have formed a reasonable suspicion of the person’s guilt (objective element). The information on which the officer basis his suspicion need not be confined to admissible evidence.
- The arresting officer must hold Genuine belief that the suspect was probably guilty of the offence (subjective element).
- The exercise of the power of arrest must not be used unreasonably. The arrest must be necessary.
The Police and Criminal Evidence Act 1984 (PACE) section 28(3) provides: ".... 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."
Code C10A NfG: There must be some reasonable, objective grounds for the suspicion, based on known facts or information which are relevant to the likelihood the offence has been committed and the person to be questioned committed it.
Code C10B NfG: An arrested person must be given sufficient information to enable them to understand they have been deprived of their liberty and the reason they have been arrested, e.g. when a person is arrested on suspicion of committing an offence they must be informed of the suspected offence’s nature, when and where it was committed. The grounds for arrest must include an explanation of the conditions which make the arrest necessary. Vague or technical language should be avoided.
Prior to 1st. January 2006 the powers of arrest were contained in section 24 of the Police and Criminal Evidence Act 1984 (PACE). However, on 1st January 2006 section 24 was repealed and replaced by a new section 24. This section changed substantially the powers of police officer to arrest an individual. The new law stems from the Serious Organised Crime and Police Act 2005.Section 110of the Act replaces section 24 of PACE.
Hardly any publicity was given to what is a substantial change in the law. The principle effect is that the power is very much wider than it was before. Before 1st January 2006 an arrest could take place if the matter for which the suspect was suspected of was classified an “arrestable offence” or where a particular power of arrest was given. It is fair criticism that the old law had become complicated and was not logical. For instance Police officers would arrest for an assault occasion actual bodily harm in a case of minor injury which would if charged be charged as an assault under section 39 of Criminal Justice Act 1988. So the new law is clearer but there is no body of case law as it so new.
The position of a person other than a police officer is covered by a section 24A which is also inserted into PACE by the Serious Organised Crime and Police Act 2005. However the power in more limited and the offence has to be an indictable offence. The definition of an indictable offence is contained in the Interpretation Act 1978 and would include an offence that is an either way offence. See separately Classification of Offences.
Police and Criminal Evidence Act 1984
Sections 24 and 25 PACE are replaced by a new section 24 and section 24A – as substituted by sections 110 and 111 and Schedule 7 of Serious Organised Crime and Police Act 2005.
The effect of the changes is to replace the concept of seriousness with a test of necessity. From 1 January 2006, all offences carry the power of arrest. A lawful arrest will require two elements:
- a person’s involvement or suspected involvement or attempted involvement in the commission of a criminal offence; and
- Reasonable grounds for believing that the person’s arrest is necessary.
The necessity criteria are set out in detail in paragraphs 2.4 to 2.9 of PACE Code G. The criteria are that the arrest is necessary to:
- obtain the name and/ or address of the person and be satisfied with the information provided
- prevent the person in question:
- (i) causing physical injury to himself or any other person;
- (ii) suffering physical injury ;
- (iii) causing loss or damage to property;
- (iv) committing an offence against public decency; or
- (v) causing an unlawful obstruction of the highway;
- protect a child or other vulnerable person from the person in question
- allow the prompt and effective investigation of the offence or of the
- conduct of the person in question
- to prevent any prosecution for the offence from being hindered by the
- disappearance of the person in question.
When considering the need to arrest the officer should take the following into account; the situation of the victim; the nature of the offence; the circumstances of the offender and the needs of the investigation.
Arrest must never be used simply because it can be used. The use of the power must be fully justified and officers exercising the power should consider whether the necessary objectives can be met by other, less intrusive means, such as summons, fixed penalty notice, penalty notice for disorder; or by using street bail following arrest rather than taking the person to the police station. Recording requirements are set out in section 4 of Code G.
Serious Organised Crime and Police Act 2005
Sections 110 and 111: Powers of arrest
Section 110 amends the powers of arrest available to a constable under the Police and Criminal Evidence Act (PACE) 1984. These currently derive primarily from sections 24 and 25 of PACE and are based on the application of the concept of seriousness attached to the offence.
The exercise of arrest powers will be subject to a test of necessity based around the nature and circumstances of the offence and the interests of the criminal justice system. An arrest will only be justified if the constable believes it is necessary for any of the reasons set out in the new section 24(5) of PACE. Further guidance will be given to a constable on the exercise of the powers in a new Code of Practice to be issued under section 66 of PACE (as amended by section 110(3)). The new section 24A of PACE sets out the power of arrest for persons other than constables. The exercise of the citizen's power of arrest will be limited to indictable offences. Section 111 and Schedule 7 make consequential and other amendments and repeals. In particular Part 1 of Schedule 7 repeals specific powers of arrest which are now unnecessary following the introduction of a general power of arrest. Part 2 of Schedule 7 provides a gloss for the same purpose on enactments where the power of arrest could not be separated out. 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. This approach may be contrasted with section 26 of PACE which contained a general repeal of powers of arrest existing before that Act came into force. Some of the specific repeals in Schedule 7 may overlap with the effect of section 26 of PACE. Part 3 of Schedule 7 contains amendments consequential on the repeal of the definitions and concepts of an arrestable offence and a serious arrestable offence. In general police powers which available in cases involving serious arrestable offences and arrestable offences will now be available in cases involving indictable only or triable either way offences. Part 4 of Schedule 7 contains purely consequential amendments.
Jarrett v Chief Constable of West Midlands Police (14 February 2003)
Jarrett v Chief Constable of West Midlands Police [2003] EWCA Civ 397 (14 February 2003) LORD JUSTICE POTTER: This is an appeal by the Chief Constable of West Midlands Police against a ruling made by His Honour Judge Durman on 17 July 2002 in the course of a trial before the judge sitting with a jury to hear the claimant's actions against the West Midlands Police for assault and false imprisonment following her alleged wrongful arrest. The judge ruled that the evidence of the police, taken at its highest, did not establish reasonable cause for the arrest of the claimant with the result that judgment was given for the claimant in an agreed sum of £6,000 in respect of damages. Held: I must accept the submission of the appellant.... the standard required by the officer is suspicion and no more. It falls well short of prima facie proof (see Hussein v Chong Fook Kam [1970] AC 942 ). Nor does it require a positive belief (see Parker v Chief Constable of Hampshire Constabulary (CA) unreported, 25 June 2002, where it was held that an officer who had reasonable grounds for thinking it "possible" that one of two people in a car was someone he was entitled to arrest had been justified in arresting that person. It seems to me that, on the assumption which the judge was obliged to make (because he did not leave it to the jury) that the officer was honest in her suspicion, he was in no position to say that such suspicion was not reasonable.
Parker v Hampshire Constabulary (25 June 1999)
Parker v Hampshire Constabulary [1999] EWCA Civ 1685 (25 June 1999) Lord Justice Judge: When exercising these powers the constable must suspect both that an arrestable offence has been committed and that the citizen he is arresting is guilty, and in addition he is required to have reasonable grounds for these suspicions (see the analysis of Woolf LJ, as he then was, in Castorina v Chief Constable of Surrey [1988] NLJR 180. For the purposes of this section suspicion should not be elided with guilt, or even prima facie proof of guilt. It “is a state of conjecture or surmise where proof is lacking: I suspect but I cannot prove.” (per Lord Devlin in Hussien v Chong Fook Kam [1970] AC 942 at 948). Therefore it follows that a mistaken arrest of an innocent citizen is not necessarily unlawful.
Note the suspicion must be based on reasonable grounds. Lord Devlin’s words, a state of “conjecture or surmise”. In my judgment this state of mind, suspicious but uncertain, was based on reasonable grounds. Accordingly the arrest of Mr Parker was lawful.
Hussien -v- Chong Fook Kam (1970)
Hussien -v- Chong Fook Kam [1970] AC 942 Lord Devlin said: "An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. It occurs also when by words or conduct he makes it clear that he will, if necessary, use force to prevent the individual from going where he may want to go."
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