Arrest

This element considers police powers of arrest with and without a warrant.
The police as investigators
There are various police personnel to be found in the police station. As well as police
officers there are a number of community support officers who perform some of the
functions of police officers, both administratively and practically. They are widely
used as patrol officers and are encouraged, as are police officers, to form links with
the community areas in which they work.
A major part of the role of operational police officers is to investigate crime and bring
the perpetrators to justice. While they have wide ranging powers to enable them to
search for and obtain evidence, it is important that you appreciate how and when
these powers can be used as the implications for any legal proceedings which follow
can be significant.
Most of these powers are contained within the Police and Criminal Evidence Act
1984 (‘PACE’).
Police ranks
There are a number of different ranks in the police force which can be found in most
police stations. Statutory powers often require the authority of an officer of a
particular rank so it is useful to understand the system.
Starting with the most junior, the uniformed officers are:
• Constable;
• Sergeant;
• Inspector;
• Chief Inspector;
• Superintendent; and
• Chief Superintendent.
There are also detectives in the Criminal Investigation Department (‘CID’) who follow
the same ranking system e.g. Detective Chief Superintendent or Detective Sergeant.
Common abbreviations used in your materials:
• PC- police constable
• DC- detective constable.
• PS- police sergeant (such as a custody sergeant)
• DS- detective sergeant.
PACE and the Codes of Practice
The word 'Constable' is used in the Police and Criminal Evidence (PACE) Act
1984 to mean any police officer.
Most of the powers that police exercise in the course of investigations into criminal
offences are contained in the PACEAct 1984 and the Codes of Practice attached to
it.
The codes supplement the legislation and give a guide to best practice so have been
amended on numerous occasions to reflect changes in police operational
procedures. They are intended to safeguard the rights of suspects and their welfare.
There are currently eight Codes of Practice: A to H. These Codes of Practice cover a
wide variety of police powers and duties. Code C (Detention, treatment and
questioning of persons) deals with powers of arrest and detention. Each Code has
a set of Notes for Guidance which provides additional information and guidance as to
how the Code should be followed.
Breaches of the Codes of Practice
Breaches of the codes do not render evidence obtained as a result of the breach
inadmissible per se, but they may provide the basis for an application to exclude
evidence.
Such challenges may be made under s.76 PACE (if the defence wishes to challenge
the admissibility of confession evidence) or s.78 PACE (for any prosecution
evidence). These sections will be explored in other elements.
The codes are admissible as evidence in criminal or civil proceedings, though
breaches of the codes by an officer do not make that officer liable to either criminal
or civil proceedings.

Legal authority and lawful exercise

For the purposes of this element, we are going to focus on only one of the powers
contained in PACE: arrest.
A police officer will have to be able to demonstrate:
• legal authority to exercise the power; and
• the police officer has exercised the power lawfully.

Reasonable Grounds
• Many of the powers in PACE require an officer to have reasonable grounds.
• Officers need to be able to say why they believe it is necessary to do what they are
about to do (subjective test). Reasonable grounds nearly always also require an
objective test and analysis of the facts of the case.
Police powers analysis
You can use PACE as a mnemonic to remember the components of an arrest:
P: identify the Power
A: what is the legal Authority granting the power?
C: What Criteria need to be met and are they met on the facts?
E: How should the power be Exercised and has it been exercised correctly on
the facts?
It is vital that you apply the criteria to the facts provided to decide if the police have
the power and then also look at how it was exercised.

Arrest
There is no definition within PACE Act 1984 of what constitutes an arrest.
• The effect of an arrest is that it restrains the liberty of the person arrested.
• The purpose of an arrest is usually to facilitate the investigation of an offence by the
police.
• The question of whether a person has been arrested is fact-sensitive.
• Taking hold of the arm of a person either to draw their attention to what is being
said to them or to stop them from falling over does not without any intention to arrest
amount to an arrest.
• The provisions of European Convention on Human Rights Article 5 apply to the
power of arrest. It seems that a deprivation of liberty as opposed to a mere restriction
of movement is required to constitute an arrest.
• An arrest is unlawful where the arresting officer knows that there is no possibility of
the arrested person being charged with an offence.

Arrest without warrant

The most important arrest power is that created by s.24 of PACE 1984.
It allows for a constable to arrest a person without a warrant.
A warrant is a written order issued by a court which authorises a judicial officer or
authorised person to undertake an act such as an arrest or entry to premises.
Under s.24 such written authorisation is not required and therefore there has to be a
ground for the arrest as well as a reason why it is necessary to arrest the suspect.
Grounds for arrest- s.24 PACE 1984
A constable may arrest without warrant anyone:
• Who is about to commit an offence
• Who is in the act of committing an offence
• Whom the constable has reasonable grounds for suspecting to be about to commit
an offence
• Whom the constable has reasonable grounds for suspecting to be committing an
offence
If a constable has reasonable grounds for suspecting that an offence has been
committed, the constable may arrest without warrant anyone:
• Whom the constable has reasonable grounds to suspect of being guilty of it
If an offence has been committed, a constable may arrest without warrant anyone:
• Who is guilty of the offence
• Whom the constable has reasonable grounds to suspect of being guilty of it

Reasons for arrest- s.24 PACE 1984

Even if the officer has reasonable grounds to suspect an offence is, has or is about
to be committed, the actual power of arrest is only exercisable if the constable has
reasonable grounds for believing that, for any one of the grounds, it is necessary to
arrest the person in question:
• To enable the name of the person to be ascertained.
• To enable the address of the person to be ascertained.
• To prevent the person:
i) Causing physical injury to themselves or any other person
ii) Suffering physical injury
iii) Causing loss of or damage to property
iv) Committing an offence against public decency
v) Causing an unlawful obstruction of the highway.
• To protect a child or other vulnerable person from the person in question.
• To allow prompt and effective investigation of the offence or the conduct of
the person in question.
• To prevent any prosecution for the offence being hindered by the
disappearance of the person in question.
The reasons on bold are most widely used in practice to satisfy the test of
‘necessity’.

Reasonable grounds for suspicion

In addition to the s.24 power of arrest, every constable and civilian has a power to
arrest to prevent a breach of the peace, whether the breach is being committed at
the time or the person arresting has a reasonable belief that a breach will be
committed in the immediate future or has been committed. Under s.24 a police
officer may arrest for any offence, whereas under s.24A a civilian may arrest only for
an indictable offence, but reasonable grounds are still required for a civilian to
exercise a power of arrest.
Where reasonable grounds for suspicion are required, there must be an objective
basis for the suspicion based on facts, information and/or intelligence. It cannot be
based on factors personal to the person arrested. The test for reasonable suspicion
is in two parts: (i) the constable carrying out the arrest must actually suspect (the
subjective test); and (ii) a reasonable person in possession of the same facts as the
constable would also suspect (the objective test). In addition, the arrest must be
Wednesbury reasonable.
Reasonable suspicion relates to facts, not law. Therefore a constable who arrests on
the basis of a mistaken view of the law does not have reasonable suspicion however
reasonable the constable’s mistake as to the law is.
Arrest with warrant
The Magistrates' Courts Act 1980, s.1 gives the magistrates' court the power to
issue an arrest warrant on the basis of an information substantiated on oath that a
person has committed an offence or is suspected of having committed an offence.
The MC can issue warrant if:
i) The offence must be indictable or imprisonable, or
ii) The person's address must be insufficiently established for a summons to
be served.
iii) A person who has failed to appear in answer to a summons or of a person
who has failed to surrender to custody having been bailed.
The Crown Court can issue an arrest warrant where a person has failed to attend
court when bailed to do so.
An arrest warrant can be “backed for bail”, meaning that the person should be
arrested and given a date on which to appear in court and then released on bail.
Most warrants are “not backed for bail”, meaning that the person should be arrested
and brought to court in custody. Advocates in the magistrates court become familiar
with the following endorsements: (i) B/W/B/F/B = bench warrant backed for bail; and
(ii) B/W/N/B/F/B = bench warrant not backed for bail.

General requirements for any arrest

In order for the arrest to be lawful, at the time of the arrest or as soon as is
practicable after arrest a person arrested by a constable must be informed of:
(a) The fact that they are under arrest; and
(b) The ground for the arrest.
This information need not be given by the arresting officer, but can be given by a
colleague instead.
If the arrest is made by a constable, the information must be given even if the fact of
the arrest and/or the ground for it is obvious.
In addition, the person should be informed of the reason for the arrest. A failure to
inform of the reason does not render the arrest unlawful, though it is a breach of
Code C.
It should be noted that an arrest which is not lawful by reason of procedural
irregularities can subsequently be rendered lawful by correction of the defective part
of the arrest procedure.

The caution
The person should be informed of the matters set out in the paragraph above in non-
technical language. 'You're nicked' is sufficient to inform a person that they are under
arrest. A specific offence need not be cited i.e. ‘you’re under arrest for public order’
would suffice.
A person arrested should be cautioned as soon as reasonably practicable after
arrest. It may be impracticable to do so by reason of the suspect’s condition or
behaviour at the time.
The words of the caution are:
'You do not have to say anything. But it may harm your defence if you do not
mention when questioned something which you later rely on in court. Anything you
do say may be given in evidence.'
Failing to administer the caution does not render the arrest unlawful, though it is a
breach of Code C and may provide grounds for exclusion of prosecution evidence
which is obtained following this failure under s.76 (if the defence wishes to challenge
the admissibility of confession evidence) and/or s.78 PACE 1984 (both for
confessions and any other evidence). These will be covered in separate elements.
Pocket notebook
The nature and circumstances of the offence leading to the arrest, the reason(s) why
the arrest was necessary, the giving of the caution, and anything said by the arrested
person at the time of the arrest must be recorded by the arresting officer in their
pocket notebook or other method used for recording information.
If the person arrested is subsequently detained at the police station, those details
must be attached to, or recorded in, the custody record.

The use of force

The PACE Act 1984, s.117 provides that where any provision of the Act confers a
power on a constable and does not provide that the power may only be exercised
with the consent of a person other than a police officer, the officer may use
reasonable force if necessary in the exercise of the power. This includes the power
of arrest.
Handcuffs should be used only where they are reasonably necessary to prevent an
escape or to prevent a violent breach of the peace.
In determining what force is reasonable, the court may take into account all the
circumstances including:
• the nature and degree of the force used;
• the gravity of the offence for which the arrest is to be made;
• the harm that would flow from the use of force; and
• the possibility of effecting the arrest without the use of force.
The fact that the force used results in serious injury does not per se make it
unreasonable. The use of excessive force does not render an arrest unlawful.
Summary
This element considered:
• Arrest:
• without a warrant- there must be a ground for the arrest as well as a reason why
it is necessary to arrest the suspect (s.24 PACE 1984), the person must be informed
of these and cautioned.
• with a warrant- a warrant is a written order issued by a court which authorises a
judicial officer or authorised person to undertake an act such as an arrest or entry to
premises.
• use of reasonable force- is permitted and use of excessive force does not render
an arrest unlawful.
The codes are admissible as evidence in criminal or civil proceedings, though
breaches of the codes by an officer do not make that officer liable to either criminal
or civil proceedings. Breaches of the codes do not render evidence obtained as a
result of the breach inadmissible per se, but they may provide the basis for an
application to exclude evidence.