Wrongful arrest

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Wrongful arrest

Wrongful arrest may provide a defendant with a defence to a charge of:

Wrongful arrest may also fund an application for the exclusion of evidence under PACE sections 76 and 78, e.g.

Comment: But don’t hold your breath!

Justification for continued detention

The arrest and detention of one person by another is a trespass unless it is justified, the onus being on the detainer to establish that justification. If an arrest is lawfully made, whether under the emergency legislation or under the general powers conferred on the police in the Criminal Evidence (Northern Ireland) Order 1989, then the arrested person may be held for a period for the purpose which was described by Lord Diplock in Holgate-Mohammed v Duke [1984] AC 437, 445, as being to -

  • `dispel or confirm the reasonable suspicion by questioning the suspect or seeking further evidence with his assistance.'

The justification which must be shown by the detainer for the subject's continued detention has been described in a number of authorities. In Dallison v Caffrey [1965] 1 QB 348, 370-1, Diplock LJ said:

  • `Since arrest involves trespass to the person and any trespass to the person is tortious, the onus lies on the arrestor to justify the trespass by establishing reasonable and probable cause for the arrest. The trespass by the arrestor continues so long as he retains custody of the arrested person, and he must justify the continuance of his custody by showing that it was reasonable.'

In Wiltshire v Barrett [1966] 1 QB 312, 325, Lord Denning MR expressed the obligation on the detainer in the following terms:

  • `Since that time [1816] it has been settled law that if, after arrest, a man is found on enquiry to be innocent, or at any rate that there is no sufficient case for detaining him, he should at once be set free.'

Lord Diplock also dealt with this point in Holgate-Mohammed v Duke [1984] AC 437. After stating that when sufficient Prima facie case of the suspect's guilt has been obtained, it is the duty of the police to charge him and bring him before the court, he went on at page 443:

  • `The other side of the same coin is where the investigation, although diligently pursued, fails to produce Prima facie case which, as Lord Devlin in Hussein v Chong Fook Kam [1970] 942 pointed out (at page 949), must be in the form of evidence that would be admissible in a court of law. When the police have reached the conclusion that Prima facie case of the arrested person's guilt is unlikely to be discovered by further enquiries of him or in other potential witnesses, it is their duty to release him from custody unconditionally: Wiltshire v Barrett [1966] 1 QB 312.'

In Petticrew v Chief Constable of the RUC [1988] NI 192, 203 O'Donnell LJ observed in this court:

  • `Reasonableness is the test to measure the conduct of the police viz a viz an arrested person throughout his detention while he is detained in custody.'

When a suspect has been lawfully arrested, accordingly, the police may hold him for a period (subject to the maxima laid down by law) while they seek evidence by questioning him and seeking it from other sources which tends to confirm or dispel the suspicion of his guilt held at the time of his arrest. If after a time a decision is made to release him, then he must be released without delay. Until that point is reached, the detention is justified, so long as the police are acting reasonably in continuing to pursue enquiries about his guilt. If it appears that at some stage they no longer have any reasonable foundation for so continuing, at that stage the justification for the detention ceases to exist."

Arrest by a constable

It has been a feature of English Common law for many years that to effect a lawful arrest a constable must have reasonable grounds of suspicion (objectively held) that the person is guilty of an offence otherwise the arrest will be unlawful.

Lord Justice Woolf formulated three questions that need to be asked in contested cases of arrest in Castorina –v- Chief Constable of Surrey [1996] LG Rev Rep 241 at page 249:

(a) Did the arresting officer suspect that the person arrested was guilty of the offence;
(b) were there reasonable grounds for that suspicion;
(c) did the officer exercise his discretion to make the arrest in accordance with Wednesbury principles.

Liversidge v Anderson [1941] UKHL 1 (03 November 1941)

"…[E]very imprisonment is prima facie unlawful and it is for a person directing an imprisonment to justify his act", per Lord Atkin in Liversedge v Anderson [1942] AC 206, 245.

In Dumbell Roberts [1944] 1 All ER 326, Scott LJ commented, at p. 329: '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. That requirement is very limited. The police are not called upon before acting to have anything like a prima facie case for conviction;…'

In Leachinsky v Christie [1947] UKHL 2 (25 March 1947) Viscount Simon: Laid down the following guide: "(1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. (4) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed. (5) The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, e.g., by immediate counter-attack or by running away. There may well be other exceptions to the general rule in addition to those I have indicated, and the above propositions are not intended to constitute a formal or complete code, but to indicate the general principles of our law on a very important matter."

The third proposition is now reversed by section 28 (4) of PACE which provides: ‘Where a person is arrested by a constable sub section (3) above applies regardless of whether the ground for arrest is obvious’.

In Dallison v. Caffery [1965] 1 Q.B. 348 Diplock L.J.'s stated at, at p. 371 "The test whether there was reasonable and probable cause for the arrest or prosecution is an objective one, namely, whether a reasonable man, assumed to know the law and possessed of the information which in fact was possessed by the defendant, would believe that there was reasonable and probable cause."

In Mohammed-Holgate v. Duke [1984] Lord Diplock made the following general observations, at p. 445B-E: "My Lords, there is inevitably the potentiality of conflict between the public interest in preserving the liberty of the individual and the public interest in the detection of crime and the bringing to justice of those who commit it. The members of the organised police forces of the country have, since the mid-19th century, been charged with the duty of taking the first steps to promote the latter public interest by inquiring into suspected offences with a view to identifying the perpetrators of them and of obtaining sufficient evidence admissible in a court of law against the persons they suspect of being the perpetrators as would justify charging them with the relevant offence before a magistrates' court with a view to their committal for trial for it.

"The compromise which English common and statutory law has evolved for the accommodation of the two rival public interests while these first steps are being taken by the police is two-fold:

"(1) no person may be arrested without warrant (i.e. without the intervention of a judicial process) unless the constable arresting him has reasonable cause to suspect him to be guilty of an indictable offence . . .

"(2) a suspect so arrested and detained in custody must be brought before a magistrates' court as soon as practicable . . . ."

In Mohammed Holgate v Duke [1984] AC 437 the House of Lords decided that the significance of the word "may" in s. 2 (4) of the Criminal Law Act 1967 (the predecessor to s.25 (6)) was that it left the officer with an executive discretion whether to arrest or not, the lawfulness of the exercise of which in any particular case could be challenged only on Wednesbury grounds Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 (10 November 1947);[1948] 1 KB 223). In the course of a speech with which all the others of their Lordships agreed Lord Diplock said, at 443 C: The Wednesbury principles, as they are usually referred to, are applicable to determining the lawfulness of the exercise of the statutory discretion of a constable under section 2 (4) of the Criminal Law Act 1967, not only in proceedings for judicial review but also for the purpose of founding a cause of action at common law for damages for that species of trespass to the person known as false imprisonment, for which the action in the instant case is brought. That case involved an allegation of lack of good faith, the suggestion being that the officer had arrested the plaintiff with an improper motive, and had therefore taken into consideration a matter irrelevant to the decision whether to arrest

In Castorina v Chief Constable of Surrey (1996) LGR,180 New Law Journal June 24 1988: Woolf L.J. Held: The claim by the plaintiff was for arrest and detention on suspicion of burglary (in which important documents were stolen) of the premises of a company by which the plaintiff had been employed until her dismissal. The investigation led the officers to conclude - as the judge found reasonably - that it was "an inside job". They interviewed a number of people, including in particular the managing director, who when asked if she had had any recent problems with staff, somewhat reluctantly disclosed that there had been problems leading to the plaintiff's dismissal and that she was the only staff member who might have a grudge against the company, but that she did not think she was the culprit. It was essentially on the strength of this information that the police, having visited and briefly interviewed the plaintiff who denied involvement, arrested her. The issue in the case was whether the officer's belief at the time he made his decision to arrest was sufficient to amount to a reasonable cause for his suspicion. The judge held that it was not, as the police should have sought more information and asked the plaintiff about whether and why she had a grudge and so on. Among the criticisms of the judge's approach there was also a challenge to the way he had directed himself as to the meaning of "reasonable cause".

Lord Woolf LJ (page 20): “There is, however, one case which I regard as important and that is Holgate-Mohammed v Duke [1984] 1 AC 437 because in that case in a speech with which the other members of the House agreed Lord Diplock analysed the structure of section 2 (4) of the Criminal Law Act 1967. Basing myself on Lord Diplock's speech at pages 442 and 443 I suggest that, in a case where it is alleged there has been an unlawful arrest, there are three questions to be answered:

1. Did the arresting officer suspect that the person who was arrested was guilty of the offence? The answer to this question depends entirely on the findings of fact as to the officer's state of mind.

2. Assuming the officer had the necessary suspicion, was there reasonable cause for that suspicion? This is a purely objective requirement to be determined by the judge if necessary on facts found by a jury.

3. If the answer to the two previous questions is in the affirmative, then the officer has a discretion which entitles him to make an arrest and in relation to that [the]..... discretion has [to be].... exercised in accordance with the principles laid down by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223. I complete my reference to authority by citing a passage from the judgment of the Privy Council delivered by Lord Devlin in Hussien v Chong Fook Kam [1970] AC 942 at 948: “Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: "I suspect but I cannot prove". Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is ready for trial and passes on to its next stage. It is indeed desirable as a general rule that an arrest should not be made until the case is complete. But if arrest before that were forbidden, it could seriously hamper the police. To give power to arrest on reasonable suspicion does not mean that it is always or even ordinarily to be exercised. It means that there is an executive discretion. In the exercise of it many factors have to be considered besides the strength of the case. The possibility of escape, the prevention of further crime and the obstruction of police inquiries are examples of those factors with which all judges who have had to grant or refuse bail are familiar.

Lord Hope of Craighead pointed out in O’Hara v Chief Constable of The Royal Ulster Constabulary (1997) AC 287, at 298, "...... The point does not depend on whether the arresting officer himself thought at that time they were reasonable. The question is whether a reasonable man would be of that opinion, having regard to the information which was in the mind of the arresting officer."

Where a constable has reasonable grounds for suspecting that an indictable offence has been committed, he may arrest without warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence.

O'Hara v. Chief Constable of the RUC (1996) UKHL 6; (1997) AC 286; (1997) 1 All ER 129; [1997] 2 WLR 1; [1997] 1 Cr App Rep 447; [1997] Crim LR 432; [1996] NI 8 (12th December, 1996)

O'HARA v. The United Kingdom - 37555/97 (2001) ECHR 598 (16 October 2001) 34. The Court emphasises that the “reasonableness” of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention laid down in Article 5 § 1 (c) of the Convention. This requires the existence of some facts or information which would satisfy an objective observer that the person concerned may have committed the offence, though what may be regarded as reasonable will depend on all the circumstances of the case (see Fox, Campbell and Hartley v. the United Kingdom, judgment of 30 August 1990, Series A no. 182, p. 16, 32).

Statutory framework PACE 1984 as amended

The Police and Criminal Evidence Act 1984 (PACE) was enacted following recommendations by the Philips Royal Commission on Criminal Procedure. It continues to be an important piece of legislation, which governs police powers and the rights of defendants. Section 24 of the Police and Criminal Evidence Act 1984 as amended by section 110 of the Serious Organised Crime and Police Act 2005 provides the power under which a person may be lawfully arrested without warrant.

The Police and Criminal Evidence Act 1984 as amended by section 110 of the Serious Organised Crime and Police Act 2005 greatly increases the power of arrest by a constable without warrant by making all offences arrestable offences. The introduction of the ‘necessity’ test under the Serious Organised Crime and Police Act 2005 only serves to highlight the exercise of the constable’s discretionary Power of arrest which already existed under common law and may be challenged if it is not exercised in accordance with the principles laid down by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v Wednesbury Corporation.

The Police and Criminal Evidence Act 1984 (PACE) s.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."

The section enacts the common law definitively laid down in Christie v Leachinsky [1947] AC 573 (save that by subsection (3) which removes the exception for cases where the fact of arrest is obvious).

Section 110 Serious Organised Crime and Police Act 2005

PACE Codes 2005 Revision

Power of arrest

Wrongful arrest: Questions

Question One: Had the arresting officer at the time he made the arrest formed in his mind reasonable grounds of suspicion that the person he arrested was guilty off the offence for which he was arrested?

Question Two: Would those grounds of suspicion examined objectively by a reasonable man knowing the law amount to reasonable cause for that suspicion?

Question Three: At the time of making the arrest did the arresting officer inform the suspect the reason for his arrest?

Question Four: Was there any circumstances that would have prevented the arresting officer from informing the suspect why he was being arrested at the time of arrest?

Question Five: Taking into account all the prevailing circumstance was it necessary to make an arrest?

If the answer to question; One, Two, Three, or Five is NO then the arrest was unlawful. NB Questions One, Three, Four, and Five are questions of fact for the jury and question Two is a matter of law for the judge to decide.

Case law

Olden, R. v (09 March 2007)

Olden, R. v [2007] EWCA Crim 726 (09 March 2007) The appellant was convicted of three counts of obtaining property by deception and two counts of obtaining services by deception. The appellant made an application to the judge to exclude evidence of his police interview and the documents seized by the police in the course of their search of his vehicle following his arrest.. He submitted that the arrest was unlawful because the arresting officer had no reasonable grounds for suspecting that an arrestable criminal offence had been committed or that the appellant was a person who had committed such an offence. The judge conducted a voir dire and held that the arresting officer had reasonably believed that the appellant had committed an arrestable offences and that he had made the arrest in that reasonable belief. The essential question therefore was whether the arrest was lawful.

The investigating officer was investigating a series of apparent mortgage frauds. He suspected that the perpetrator was the appellant. There seems to be no question but that the investigating officer had reasonable grounds for his suspicion. At the voir dire The arresting officer said that he was told to keep observation for a silver Mitsubishi Shogun. He was given its registration number and told that the driver was the appellant. The man was to be arrested on suspicion of fraud on behalf of the South Wales Police. He was unable to recall any other details. After reviewing the cases of:

O’Hara v Chief Constable Royal Ulster Constabulary

Hough v Chief Constable of Staffordshire Police [2001] EWCA Civ 39.

The court Held:

"We conclude that the judge did not address his mind to the question of [the arresting officer’s] state of mind, and that had he done so he should have concluded that he did not have material on which to find that [the arresting officer’s] had the necessary suspicion. It follows in our view that the arrest was unlawful and that the interview and searches that resulted from the arrest were also unlawful. Since the material that was discovered by the police in the interview and by the searches was of considerable importance in the case, the appeal must succeed."
B v Director of Public Prosecutions (03 July 2008)

B v Director of Public Prosecutions [2008] EWHC 1655 (Admin) (03 July 2008)

B was convicted by the West London Youth Court of the offences of obstructing a police constable in the execution of his duty, and using threatening or abusive words or behaviour contrary to section 4 of the Public Order Act. He now appeals by way of case stated. The magistrates found that the search of the appellant was lawful notwithstanding an admitted failure to comply with the Police and Criminal Evidence Act Code of Conduct. They concluded that PC Townsend had taken reasonable steps to comply with his duties under section 2(2)(b) of the Police and Criminal Evidence Act 1984. They did not specify what those steps were or why they had not resulted in the production of the warrant card. It is common ground the provisions of section 2(2)(b) apply to a Misuse of Drugs Act search. The justices posed three questions for the opinion of the High Court:

"(1) Was the court entitled to find that notwithstanding the failure of PC Townsend to produce documentary evidence to the appellant, that he had taken all reasonable steps to comply with his duty as provided by section 2(2)(b)(i) of the Police and Criminal Evidence Act and the Code of Conduct?"

The answer is "no", in my judgment.

"(2) If not, did that failure render the search unlawful?"

In my judgment, the answer is "yes".

"(3) If the search and use of force on the appellant were unlawful, can the appellant properly be convicted of an offence pursuant to section 4(1)(a) of the Public Order Act 1986?"

In my judgment, the answer is "yes", but only if the conduct used in resisting any unlawful force was excessive.

Applying those answers to the facts of this case, it must follow that the conviction for obstruction of the police must be quashed and an acquittal substituted. The appellant was entitled to use reasonable force to resist the search, and conviction for threatening words or behaviour could be founded on reasonable force or threat of force to resist such a search. Since the justices appear to have included the appellant's resistance to the search as at least part of the basis of the conviction for threatening words, the conviction cannot stand.

Wood v Director of Public Prosecutions (14 May 2008)

Wood v Director of Public Prosecutions [2008] EWHC 1056 (Admin)

Where a police officer took hold of someone’s arm, and at the time had no intention of arresting that person, that action amounted to an unlawful assault.

Held: ‘where a police officer restrains a person, but does not at that time intend or purport to arrest him, then he is committing an assault, even if an arrest would have been justified. In the present case, Sergeant Cannon did not intend or purport to arrest the appellant when he restrained him and at no stage in the course of the fracas which resulted, did he assert that he was arresting the appellant. If he had done so or either of the constables had done so, before the appellant struggled in order to obtain his release, the position would be different. But the facts found do not support such a conclusion. It follows that the appeal is allowed, and the convictions must be quashed.’

Bibby v Chief Constable Of Essex Police (6 April 2000)

Bibby v Chief Constable Of Essex Police [2000] EWCA Civ 113 (6 April 2000) Wronful arrest

Parker v Hampshire Constabulary (25 June 1999)

Reasonable grounds of suspicion to arrest: Parker v Hampshire Constabulary [1999] EWCA Civ 1685 (25 June 1999) 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.

The right to liberty and security is a key principle of the Human Rights Act 1998. The exercise of the power of arrest represents an obvious and significant interference with the human rights of citizens.

Article 5(1) of the European convention on human rights provides: ‘Everyone has the right to liberty and security of the person’ It goes on to say: ‘No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law’. There are six cases (a) to (f). Case (c) is relevant to the point in question and states: ‘the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so’.

Article 5(2) states: ‘Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him’.

The effect of (Section 28 of the Police and Criminal Evidence Act 1984) is that no arrest is lawful unless the person arrested is informed:

  • that he is under arrest as soon as practicable after arrest;
  • of the grounds for his arrest at the time of, or as soon as is practical after, the arrest.

Where police officers or persons serving with the police make an unlawful arrest any force used to affect the arrest may also be unlawful and an assault.

Section 24 of the Police and Criminal Evidence Act 1984 as amended by 110 Serious Organised Crime and Police Act 2005 provides the power under which a person may be lawfully arrested without warrant.


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