Arrest

(1) Arrest means placing a person under lawful detention against their will for the purposes of law enforcement. When is it fair to arrest someone? Individuals have a right to libery, and it has been held by the courts that if the police do not adequately respect rights to liberty by ensuring that (i) they have some evidence to justify the arrest before it takes place, (ii) that they tell the person why they are being arrested and (iii) that they release the person as soon as possible, then the arrest becomes unlawful. This was the position in a case called Christie v. Leachinsky [1947] A.C. 573.

where it was said that "a citizen...is prima facie entitled to personal freedom...". But, the right to liberty is not absolute, and its balance with other societal interests (which are reflective of other rights) can be demonstrated by Article 5 of the European Convention on Human Rights and Fundamental Freedoms (which becomes part of UK law under the Human rights Act 1998):

European Convention on Human Rights (Cmd. 8969, 1950) Art. 5.1

"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law...

(c) 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..."

(2) The most regulated powers of arrest are those which are allowed under warrant. A warrant is a formal legal document which authorises someone to take action. In this case, warrants can be issued by any individual magistrate to a police officer to carry out the arrest of a named individual. This is the common method of proceeding against people who have failed to pay their fines after a conviction, or have failed to "answer bail" ie appear at court or a police station when they have been told to do so. The power is set out in the Magistrates’ Courts Act 1980 section 1.

SECTION: 1 Issue of summons to accused or warrant for his arrest

(1) Upon an information being laid before a justice of the peace for an area to which this section applies that any person has, or is suspected of having, committed an offence, the justice may, in any of the events mentioned in subsection (2) below, but subject to subsections (3) to (5) below,--

(a) issue a summons directed to that person requiring him to appear before a magistrates' court for the area to answer to the information, or
(b) issue a warrant to arrest that person and bring him before a magistrates' court for the area or such magistrates' court as is provided in subsection (5) below.

(2) A justice of the peace for an area to which this section applies may issue a summons or warrant under this section--

(a) if the offence was committed or is suspected to have been committed within the area, or
(b) if it appears to the justice necessary or expedient, with a view to the better administration of justice, that the person charged should be tried jointly with, or in the same place as, some other person who is charged with an offence, and who is in custody, or is being or is to be proceeded against, within the area, or
(c) if the person charged resides or is, or is believed to reside or be, within the area, or
(d) if under any enactment a magistrates' court for the area has jurisdiction to try the offence, or
(e) if the offence was committed outside England and Wales and, where it is an offence exclusively punishable on summary conviction, if a magistrates' court for the area would have jurisdiction to try the offence if the offender were before it.

(3) No warrant shall be issued under this section unless the information is in writing and substantiated on oath.

(4) No warrant shall be issued under this section for the arrest of any person who has attained [the age of 18 years] unless--

(a) the offence to which the warrant relates is an indictable offence or is punishable with imprisonment, or
(b) the person's address is not sufficiently established for a summons to be served on him.

(5) Where the offence charged is not an indictable offence--

(a) no summons shall be issued by virtue only of paragraph (c) of subsection (2) above, and
(b) any warrant issued by virtue only of that paragraph shall require the person charged to be brought before a magistrates' court having jurisdiction to try the offence.

(6) Where the offence charged is an indictable offence, a warrant under this section may be issued at any time notwithstanding that a summons has previously been issued.

(7) A justice of the peace may issue a summons or warrant under this section upon an information being laid before him notwithstanding any enactment requiring the information to be laid before two or more justices.

(8) The areas to which this section applies are [commission areas].

(3) More important are powers of arrest without warrant - these depend very much on the discretion of the individual officer. Arrest without warrant is an important investigative tool since it can lead into detention for questioning. The powers to arrest without warrant fall into a number of sub-categories.

(4) The first concerns the power of summary arrest in relation to arrestable offences under Police and Criminal Evidence Act 1984 (PACE) s.24. The definition of arrestable offences is in s.24(1)-(3)

 

Police and Criminal Evidence Act 1984, s.24 (1)-(3) - Arrest without warrant for arrestable offences

 24. - (1) The powers of summary arrest conferred by the following subsections shall apply -

(a) to offences for which the sentence is fixed by law;

(b) to offences for which a person of 21 years of age or over (not previously convicted) may be sentenced to imprisonment for a term of five years (or might be so sentenced but for the restrictions imposed by section 33 (»»text) of the Magistrates' Courts Act 1980); and

(c) to the offences to which subsection (2) below applies,

and in this Act "arrestable offence" means any such offence.

 (2) The offences to which this subsection applies are -

(a) offences for which a person may be arrested under the customs and excise Acts, as defined in section 1(1) of the Customs and Excise Management Act 1979;
(b) offences under the Official Secrets Act ... 1920 that are not arrestable offences by virtue of the term of imprisonment for which a person may be sentenced in respect of them;
(bb) offences under any provision of the Official Secrets Act 1989 except section 8(1), (4) or (5);
(c) offences under section ... 22 (causing prostitution of women) or 23 (procuration of girl under 21) of the Sexual Offences Act 1956;
(d) offences under section 12(1) (taking motor vehicle or other conveyance without authority, etc.) or 25(1) (going equipped for stealing, etc) of the Theft Act 1968; and
(e) any offence under the Football (Offences) Act 1991;
(f) an offence under section 2 of the Obscene Publications Act 1959 (publication of obscene matter);
(g) an offence under section 1 of the Protection of Children Act 1978 (indecent photographs and pseudo-photographs of children);
(h) an offence under section 166 of the Criminal Justice and Public Order Act 1994 (sale of tickets by unauthorised persons);
(i) an offence under section 19 of the Public Order Act 1986 (publishing, etc. material intended or likely to stir up racial hatred);
(j) an offence under section 167 of the Criminal Justice and Public Order Act 1994 (touting for hire car services);
(k) an offence under section 1(1) of the Prevention of Crime Act 1953 (prohibition of the carrying of offensive weapons without lawful authority or reasonable excuse);
(l) an offence under section 139(1) of the Criminal Justice Act 1988 (offence of having article with blade or point in public place;
(m) an offence under section 139A(1) or (2) of the Criminal Justice Act 1988 (offence of having article with blade or point (or offensive weapon) on school premises);
(n) an offence under section 2 of the Protection from Harassment Act 1997 (harassment).

 (3) Without prejudice to section 2 of the Criminal Attempts Act 1981, the powers of summary arrest conferred by the following subsections shall also apply to the offences of -

(a) conspiring to commit any of the offences mentioned in subsection (2) above;
(b) attempting to commit any such offence other than an offence under section 12(1) of the Theft Act 1968;
(c) inciting, aiding, abetting, counselling or procuring the commission of any such offence;

and such offences are also arrestable offences for the purposes of this Act.

 

The powers in relation to these types of offences are in s.24(4) - (7):

Police and Criminal Evidence Act 1984, s.24 (4)-(7) - Arrest without warrant for arrestable offences

(4) Any person may arrest without a warrant -

(a) anyone who is in the act of committing an arrestable offence;
(b) anyone whom he has reasonable grounds for suspecting to be committing such an offence.

 (5) Where an arrestable offence has been committed, any person 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.

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

 (7) A constable may arrest without a warrant -

(a) anyone who is about to commit an arrestable offence;
(b) anyone whom he has reasonable grounds for suspecting to be about to commit an arrestable offence.

 

(5) The next category of powers are those which are expressly preserved under section 26. These include those set out n schedule 2 of PACE

Police and Criminal Evidence Act 1984, s.26, Schedule 2 -
Repeal of statutory powers of arrest without warrant or order

 26. - (1) Subject to subsection (2) below, so much of any Act (including a local Act) passed before this Act as enables a constable -

(a) to arrest a person for an offence without a warrant; or
(b) to arrest a person otherwise than for an offence without a warrant or an order of a court,

shall cease to have effect.

 (2) Nothing in subsection (1) above affects the enactments specified in Schedule 2 of this Act.

SCHEDULE 2
Preserved Powers of Arrest

Section 17(2) of the Military Lands Act 1892.
Section 12(1) of the Protection of Animals Act 1911.
Section 2 of the Emergency Powers Act 1920.
Section 7(3) of the Public Order Act 1936.
Section 49 of the Prison Act 1952.
Section 13 of the Visiting Forces Act 1952.
Sections 186 and 190B of the Army Act 1955.
Sections 186 and 190B of the Air Force Act 1955.
Sections 104 and 105 of the Naval Discipline Act 1957.
Section 1(3) of the Street Offences Act 1959.
Section 32 of the Children and Young Persons Act 1969.
Section 24(2) of the Immigration Act 1971 and paragraphs 17, 24 and 33 of Schedule 2 and paragraph 7 of Schedule 3 to that Act.
Section 7 of the Bail Act 1976.
Sections 6(6), 7(11), 8(4), 9(7) and 10(5) of the Criminal Law Act 1977.
Schedule 5 to the Reserve Forces Act 1980.
Sections 60(5) and 61(1) of the Animal Health Act 1981.
Rule 36 in Schedule 1 to the Representation of the People Act 1983. [Added by the Representation of the People Act 1985, s.25(1).]
Sections 18, 35(10), 36(8), 38(7), 136(1) and 138 of the Mental Health Act 1983.
Section 5(5) of the Repatriation of Prisoners Act 1984.

 

Section 26 also leaves unaffected comon law powers of arrest and detention. These exist in relation to breaches of the peace. Probably the leading case is R. v Howell [1981] 3 W.L.R.501 [Will be available in full soon]

It should be emphasised that the common law allows action by the police to preserve the peace which falls short of arrest eg pulling a person who has jumped a queue away from hostile bystanders: Lavin v. Albert [1982] A.C. 546.

(6) Next, a power of arrest without warrant is created by PACE section 27 to allow for the taking of fingerprints from someone who has been convcited of a recordable offence.

Police and Criminal Evidence Act 1984, s.27
Fingerprinting of certain offenders

 27. - (1) If a person -

(a) has been convicted of a recordable offence;
(b) has not at any time been in police detention for the offence; and
(c) has not had his fingerprints taken -
(i) in the course of the investigation of the offence by the police; or
(ii) since the conviction,

any constable may at any time not later than one month after the date of the conviction require him to attend a police station in order that his fingerprints may be taken.

 (2) A requirement under subsection (1) above -

(a) shall give the person a period of at least 7 days within which he must so attend; and
(b) may direct him to so attend at a specified time of day or between specified times of day.

 (3) Any constable may arrest without warrant a person who has failed to comply with a requirement under subsection (1) above.

 (4) The Secretary of State may by regulations make provision for recording in national police records convictions for such offences as are specified in the regulations.

 (5) [Making of regulations.]

 

(7) Finally, all remaining offences are covered by section 25 of PACE

Police and Criminal Evidence Act 1984, s.25
General arrest conditions

 25. - (1) Where a constable has reasonable grounds for suspecting that any offence which is not an arrestable offence has been committed or attempted, or is being committed or attempted, he may arrest the relevant person if it appears to him that service of a summons is impracticable or inappropriate because any of the general arrest conditions is satisfied.

 (2) In this section "the relevant person" means any person whom the constable has reasonable grounds to suspect of having committed or having attempted to commit the offence or of being in the course of committing or attempting to commit it.

 (3) The general arrest conditions are -

(a) that the name of the relevant person is unknown to, and cannot be readily ascertained by, the constable;
(b) that the constable has reasonable grounds for doubting whether a name furnished by the relevant person as his name is his real name;
(c) that -
(i) the relevant person has failed to furnish a satisfactory address for service; or
(ii) the constable has reasonable grounds for doubting whether an address furnished by the relevant person is a satisfactory address for service;
(d) that the constable has reasonable grounds for believing that arrest is necessary to prevent the relevant person -
(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; or
(v) causing an unlawful obstruction of the highway;
(e) that the constable has reasonable grounds for believing that arrest is necessary to protect a child or other vulnerable person from the relevant person.

(4) For the purposes of subsection (3) above an address is a satisfactory address for service if it appears to the constable -

(a) that the relevant person will be at it for a sufficiently long period for it to be possible to serve him with a summons; or
(b) that some other person specified by the relevant person will accept service of a summons for the relevant person at it.

 (5) Nothing in subsection (3)(d) above authorises the arrest of a person under sub-paragraph (iv) of that paragraph except where members of the public going about their normal business cannot reasonably be expected to avoid the person to be arrested.

 (6) This section shall not prejudice any power of arrest conferred apart from this section.

 

You should note that it is not enough in this case for the police to suspect an offence; there must be some extra factor - one of the "general arrest conditions" which makes arrest necessary. This reflects the fact that liberty is important and should not be taken away solely because a person has committed a relatively trivial offence. If the police can deal with the offender without an arrest, such as by taking their name and issuing a summons against them, that is how they should proceed.


Detention other than by arrest

(1) It has been noted already that the police have some powers at common law to detain without making a formal arrest. These exist in order to prevent or quell breaches of the peace.

(2) However, the normal rule is that the police do not have powers to detain for questioning or to make people "help with their inquiries". Individuals can generally choose whether or not to help the police. Good citizens will generally wish to assist, but the principle of policing by the consent of the public means that they should not be forced to assist unless formally arrested. This general position is reflected in PACE section 29

Police and Criminal Evidence Act 1984, s 29
Voluntary attendance at police station etc

Where for the purpose of assisting with an investigation a person attends voluntarily at a police station or at any other place where a constable is present or accompanies a constable to a police station or any such other place without having been arrested--

(a) he shall be entitled to leave at will unless he is placed under arrest;
(b) he shall be informed at once that he is under arrest if a decision is taken by a constable to prevent him from leaving at will.

(3) There are some exceptions, the most important of which are the police powers:

to set up road checks under PACE section 4 and to stop vehicles under the Road Traffic Act 1988 section 163

Police and Criminal Evidence Act 1984, s.4
Road checks

 4. - (1) This section shall have effect in relation to the conduct of road checks by police officers for the purpose of ascertaining whether a vehicle is carrying -

(a) a person who has committed an offence other than a road traffic or a vehicle excise offence;
(b) a person who is a witness to such an offence;
(c) a person intending to commit such an offence; or
(d) a person who is unlawfully at large.

 (2) For the purposes of this section a road check consists of the exercise in a locality of the power conferred by section 163 of the Road Traffic Act 1988 in such a way as to stop during the period for which its exercise in that way in that locality continues all vehicles or vehicles selected by any criterion.

 (3) Subject to subsection (5) below, there may only be such a road check if a police officer of the rank of superintendent or above authorises it in writing.

 (4) An officer may only authorise a road check under subsection (3) above -

(a) for the purpose specified in subsection (1)(a) above, if he has reasonable grounds -
(i) for believing that the offence is a serious arrestable offence; and
(ii) for suspecting that the person is, or is about to be, in the locality in which vehicles would be stopped if the road check were authorised;
(b) for the purpose specified in subsection (1)(b) above, if he has reasonable grounds for believing that the offence is a serious arrestable offence;
(c) for the purpose specified in subsection (1)(c) above, if he has reasonable grounds -
(i) for believing that the offence would be a serious arrestable offence; and
(ii) for suspecting that the person is, or is about to be, in the locality in which vehicles would be stopped if the road check were authorised;
(d) for the purpose specified in subsection (1)(d) above, if he has reasonable grounds for suspecting that the person is, or is about to be, in that locality.

 (5) An officer below the rank of superintendent may authorise such a road check if it appears to him that it is required as a matter of urgency for one of the purposes specified in subsection (1) above.

 (6) If an authorisation is given under subsection (5) above, it shall be the duty of the officer who gives it -

(a) to make a written record of the time at which he gives it; and
(b) to cause an officer of the rank of superintendent or above to be informed that it has been given.

 (7) The duties imposed by subsection (6) above shall be performed as soon as it is practicable to do so.

 (8) An officer to whom a report is made under subsection (6) above may, in writing, authorise the road check to continue.

 (9) If such an officer considers that the road check should not continue, he shall record in writing -

(a) the fact that it took place; and
(b) the purpose for which it took place.

 (10) An officer giving an authorisation under this section shall specify the locality in which vehicles are to be stopped.

 (11) An officer giving an authorisation under this section, other than an authorisation under subsection (5) above -

(a) shall specify a period, not exceeding seven days, during which the road check may continue; and
(b) may direct that the road check -
(i) shall be continuous; or
(ii) shall be conducted at specified times,
during that period.

 (12) If it appears to an officer of the rank of superintendent or above that a road check ought to continue beyond the period for which it has been authorised he may, from time to time, in writing specify a further period, not exceeding seven days, during which it may continue.

 (13) Every written authorisation shall specify -

(a) the name of the officer giving it;
(b) the purpose of the road check; and
(c) the locality in which vehicles are to be stopped.

 (14) The duties to specify the purposes of a road check imposed by subsections (9) and (13) above include duties to specify any relevant serious arrestable offence.

 (15) Where a vehicle is stopped in a road check, the person in charge of the vehicle at the time when it is stopped shall be entitled to obtain a written statement of the purpose of the road check if he applies for such a statement not later than the end of the period of twelve months from the day on which the vehicle was stopped.

 (16) Nothing in this section affects the exercise by police officers of any power to stop vehicles for purposes other than those specified in subsection (1) above.

 


The exercise of arrest powers

(1) An important qualification, which very much reflects respect for the right to liberty, is the requirement which applies to all normal arrest powers that they can only be exercised if some for of "reasonable suspicion" is first established. The precise meaning of this term is rather vague, but it basically means that the arresting officer must be sure subjectively there is some evidence against the detainee and it must be objectively the case that the evidence on the officer’s mind would have been enough to convince a reasonable bystander that it was reasonable to make an arrest. This does not mean there has to be proof of guilt beyond reasobale doubt (or even on the balance of probabilities). But it does mean there has to be good objective reasons for picking on the person to be arrested - the fact that he is a previous offender known to the police or is cheeky or is from a particular racial or ethnic group is not enough.

(2) According to PACE section 17, the police can enter private premises in order to make arrests:

Police and Criminal Evidence Act 1984, s.17
Entry for purpose of arrest, etc.

 17. - (1) Subject to the following provisions of this section, and without prejudice to any other enactment, a constable may enter and search any premises for the purpose -

(a) of executing -
(i) a warrant of arrest issued in connection with or arising out of criminal proceedings; or
(ii) a warrant of commitment issued under section 76 of the Magistrates' Courts Act 1980;
(b) of arresting a person for an arrestable offence;
(c) of arresting a person for an offence under -
(i) section 1 (prohibition of uniforms in connection with political objects), ... of the Public Order Act 1936;
(ii) any enactment contained in sections 6 to 8 or 10 of the Criminal Law Act 1977 (offences relating to entering and remaining on property);
(iii) section 4 of the Public Order Act 1986 (fear or provocation of violence);
(iv) section 76 of the Criminal Justice and Public Order Act 1994 (failure to comply with interim possession order);
(ca) of arresting, in pursuance of section 32(1A) of the Children and Young Persons Act 1969, any child or young person who has been remanded or committed to local authority accommodation under section 23(1) of that Act;
(cb) of recapturing any person who is, or is deemed for any purpose to be, unlawfully at large while liable to be detained -
(i) in a prison, remand centre, young offender institution or secure training centre, or
(ii) in pursuance of section 53 of the Children and Young Persons Act 1933 (dealing with children and young persons guilty of grave crimes), in any other place;
(d) of recapturing any person whatsoever who is unlawfully at large and whom he is pursuing; or
(e) of saving life or limb or preventing serious damage to property.

 (2) Except for the purpose specified in paragraph (e) of subsection (1) above, the powers of entry and search conferred by this section -

(a) are only exercisable if the constable has reasonable grounds for believing that the person whom he is seeking is on the premises; and
(b) are limited, in relation to premises consisting of two or more separate dwellings, to powers to enter and search -
(i) any parts of the premises which the occupiers of any dwelling comprised in the premises use in common with the occupiers of any other such dwelling; and
(ii) any such dwelling in which the constable has reasonable grounds for believing that the person whom he is seeking may be.

 (3) The powers of entry and search conferred by this section are only exercisable for the purposes specified in subsection (1)(c)(ii) or (iv) above by a constable in uniform.

 (4) The power of search conferred by this section is only a power to search to the extent that is reasonably required for the purpose for which the power of entry is exercised.

 (5) Subject to subsection (6) below, all the rules of common law under which a constable has power to enter premises without a warrant are hereby abolished.

 (6) Nothing in subsection (5) above affects any power of entry to deal with or prevent a breach of the peace.

(3) As mentioned previously, persons under arrest must be given reasons for the arrest. This ensures that the police think about the reasons, and it also allows an early explanation of innocence to be offered. This idea was set out in the case of Christie v Leachinsky. It is now in PACE section 28:

Police and Criminal Evidence Act 1984, s.28
Information to be given on arrest

 28. - (1) Subject to subsection (5) below, where 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 is practicable after his arrest.

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

 (3) Subject to subsection (5) below, 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.

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

 (5) Nothing in this section is to be taken to require a person to be informed -

(a) that he is under arrest; or
(b) 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.

 

(4) In effecting an arrest, the polcie are allowed to use such force as is reasobale in all the circumstances: Criminal Law Act 1967 section 3

Criminal Law Act 1967, s.3
Use of force in making arrest, etc.

 3. - (1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

 (2) Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.

There have been cases where this rule has been challenged under Article 2 of the European Convention on Human Rights, most notably in the case of the Gibraltar 3 - McCann v UK, App. no.18984/91, Ser A vol.324, (1995).

the courts have been reluctant to be more precise as to what is reasonable in the circumstances. In a case from Northern Ireland, where a soldier had shot dead a person who he thought was a possible terrorist fleeing from arrest, the folowing was stated:

" ... no reasonable man

(a) with the knowledge of such facts as were known to the accused or reasonably believed by him to exist

(b) in the circumstances and time available to him for reflection

(c) could be of the opinion that the prevention of the risk of harm to which others might be exposed if the suspect were allowed to escape justified exposing the subject to the risk of the harm to him that might result from the kind of force that the accused contemplated using."

Reference under s.48A Criminal Appeal (Northern Ireland) Act 1968 (No. 1 of 1975) [1976] 2 ALL E.R. 937

(5) If a person believed that they have been subjected to an improper arrest, the following remedies may be available:


Last Updated October 1998

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