(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 (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 (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 (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 (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; (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; 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; (5) Where an arrestable offence has been committed, any person may arrest without a warrant - (a) anyone who is guilty of the offence; (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; |
(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 - 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 shall cease to have effect. (2) Nothing in subsection (1) above affects the
enactments specified in Schedule 2 of this Act. SCHEDULE 2 Section 17(2) of the Military Lands Act 1892. |
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 27. - (1) If a person - (a) has been convicted of a recordable offence; 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 (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 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; (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 (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.
(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 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; |
(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 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; (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 - (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 (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 (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 (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; (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. |
(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 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 - (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 (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 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 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 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:
- a civil or criminal action against the police - for example, for assault
- a complaint to the Police Complaints Authority
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