Preliminaries to prosecution Main Powers of arrest and the detention and treatment of suspects Flashcards
Reasonable Suspicion
A number of police powers are premised upon the constable having ‘reasonable grounds for suspicion.’
This reflects the ECHR, Article 5(1)(c), which permits a person to be deprived of liberty ‘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’.
Reasonable suspicion relates to the existence of facts and not to the state of the law. An officer who reasonably but mistakenly proceeds on a particular view of the law, and thus exercises his or her power of arrest, does not have reasonable suspicion. However, in the absence of a specific statutory requirement to such effect, the precise legal power under which the constable acts does not have to have been identified.
Reasonable suspicion is not defined in the PACE 1984. It is explained in relation to stop and search powers, requires both a genuine suspicion on the part of the officer concerned and an objective basis for that suspicion.
Facts and information should not be confined to those which tend to indicate guilt, but should include facts and information that tend to dispel suspicion.
It has been held that reasonable suspicion requires both that the constable carrying out the arrest actually suspects (a subjective test) and that a reasonable person in possession of the same facts as the constable would also suspect (an objective test).
Whether the constable had reasonable suspicion must be determined according to what the constable knew and perceived at the time; reasonableness is to be evaluated without reference to hindsight.
Information required to form a reasonable suspicion is of a lower standard than that required to establish a prima facie case. Prima facie proof must be based on admissible evidence whereas reasonable suspicion may take into account matters which are not admissible in evidence or matters which, while admissible, could not form part of a prima facie case.
While it is not necessary to have identified the specific suspicious offence the constable must reasonably suspect the existence of facts amounting to an offence of a kind in mind.
Use of Force
PACE 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 be exercised only 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.
It would not include the use of force in connection with the conduct of a visual identification procedure governed by PACE Code D, or the taking of an intimate sample under s. 62, since these require consent.
A civilian may, in exercising those powers, use reasonable force in the same circumstances as a constable.
Any person can use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of an offender or suspected offender or of persons unlawfully at large
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 arrest is to be made, the harm that would flow from the use of force against the suspect, and the possibility of effecting the arrest or preventing the harm by other means. The fact that the force used results in serious injury does not necessarily make it unreasonable. The use of excessive force will not render the arrest unlawful.
Use of Handcuffs
Handcuffs should be used only where they are reasonably necessary to prevent an escape or to prevent a violent breach of the peace by a prisoner.
The same rule applies to the handcuffing of prisoners in court.
It would seem that, where handcuffs are unjustifiably resorted to, their use will constitute a trespass even though the arrest itself is lawful.
Powers of Arrest
Police powers of arrest without a warrant in relation to criminal offences are principally governed by the PACE 1984, s. 24.
Civilian powers of arrest are governed by the PACE 1984, s. 24A. The other remaining power of arrest without a warrant is the common-law power of arrest for breach of the peace
‘Arrest’
One approach is that a person is arrested if, as a result of what is said or done, the person is under compulsion and is not free to go.
Arrest is an ordinary English word, and whether or not a person has been arrested depends not on the legality of the arrest but on whether the person has been deprived of liberty to go where he or she pleases.
A second approach is that context and purpose are relevant.
The House of Lords distinguished between a deprivation of liberty and a restriction of movement. Whether a situation amounts to a deprivation of liberty as opposed to a restriction of movement is a matter of degree and intensity and is highly fact-sensitive.
A whole range of factors has to be considered including the individual’s specific situation, the context in which the restriction occurs and the purpose of the confinement or restriction.
There may be imprisonment at common law without there being a deprivation of liberty under the ECHR, Article 5.
In Iqbal it was held that a person who was handcuffed by a police officer and told that he would be arrested later by other officers was not under arrest (although he was unlawfully detained). Under the Lewis approach these circumstances would clearly have amounted to an arrest, albeit an unlawful arrest because D was not told that he was under arrest as required by the PACE 1984, s. 28(1).
Taking hold of a person’s arm for the purpose of simply drawing attention to what is being said, without an intention to detain or arrest, is neither an arrest nor an actionable trespass to the person unless it goes beyond what is acceptable by the ordinary standards of everyday life
Same is true where an officer takes a drunk person by the arm to steady him for his own safety.
However, if an officer takes hold of a person’s arm to detain that person while the officer decides whether to arrest, this does amount to a trespass (Wood v DPP)
And detaining a person by confinement in a restricted space, without any intention of arrest, amounts to unlawful imprisonment (Walker v Metropolitan Police Commissioner.
There is no necessary assumption that an arrest will be followed by a charge (Holgate-Mohammed v Duke)
Although the power to arrest must be exercised for a proper purpose, it was affirmed in Chalkley that the fact that an arrest is motivated by a desire to investigate another, more serious, offence does not render it invalid provided there are valid grounds for the arrest.
An arrest for an offence will, however, be unlawful, even though made on the basis of reasonable suspicion, where the officer knows at the time of arrest that there is no possibility of a charge being made.
Conversely, it is clear that, even though a complainant withdraws the complaint, a constable may still arrest a suspect where hoping by so doing to obtain a confession (Plange v Chief Constable of South Humberside Police)
If the lawfulness of an arrest carried out by an officer at the request of another is challenged, it is for the police to prove that the officer who asked for the arrest to be made acted in good faith in making the request (Copeland v Metropolitan Police Commissioner)
The burden of proof of lawful arrest is on the police; if an arrest is lawful, the burden of proving excessive force is on the complainant (Durrant v Chief Constable of Avon and Somerset Constabulary)
Reasonable force may be used to effect an arrest (PACE 1984, s. 117)
Communication of Fact of and Grounds for Arrest
Where a person is arrested (whether or not for an offence), otherwise than by being informed of being under arrest, the arrest is unlawful unless the person is informed of being under arrest as soon as is practicable after the arrest (PACE 1984, s. 28(1)).
If the arrest is by a constable, this applies even if the fact of arrest is obvious (s. 28(2)).
Further, an arrest is unlawful unless the arrested person is informed of the ground for the arrest at the time of the arrest, or as soon as is practicable after the arrest (s. 28(3)).
If the arrest is by a constable, this applies even if the grounds for arrest are obvious (s. 28(4)).
The person must also be informed why arrest was believed to be necessary (for the purposes of s. 24(4)), although failure to do so will not render the arrest unlawful.
The test for whether the words used were sufficient is whether, having regard to all the circumstances of the case, the person arrested was told, in simple, non-technical language that the person could understand, the essential legal and factual grounds for the arrest (Taylor v Chief Constable of Thames Valley Police)
Where a person is arrested for an offence that person must be informed of the nature of the suspected offence, and when and where it was allegedly committed.
The information need not be given by the arresting officer but may be given by a colleague (Nicholas v Parsonage)
Where no reasons are given at the time of arrest because it is impracticable to inform the suspect, acts done at the time of arrest do not become retrospectively invalid because of a later failure to inform the suspect
The words used will suffice even though they are apt to describe more than one offence, provided that they aptly describe the offence for which the arrest is made.
Informing a person that he or she was arrested for ‘public order’ was sufficient. An arresting officer may not, however, lead a person to think that the officer is arresting him or her for one offence when in truth the officer wishes to arrest the person for another.
A person who is arrested, or who is further arrested must be cautioned at the time of arrest or as soon as is practicable afterwards unless it is impracticable to do so because of the person’s condition or behavior at the time or the person has already been cautioned immediately before arrest (e.g., where initially questioned regarding a suspected offence without being arrested).
Failure to administer a caution does not render the arrest unlawful, although it may provide grounds for exclusion of evidence under the PACE 1984, s. 76.
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 arrest must be recorded by the arresting officer in the officer’s pocket book (or other method used for recording information) .
This record must be made at the time of the arrest unless impracticable, in which case it must be completed as soon as possible thereafter.
If the arrested person is subsequently detained at a police station, the information given by the arresting officer as to the circumstances and reason(s) for the arrest must be recorded in, or attached to, the custody record.
Action following Arrest
Where a person is arrested at any place other than a police station, or is taken into custody by a constable following an arrest made by a civilian, the constable is normally obliged to take the person to a designated police station as soon as is practicable thereafter.
In exceptional circumstances the person may be taken to a non-designated station.
The constable may delay taking the arrested person to a police station or releasing on bail under if the person’s presence at a place other than a police station is necessary in order to carry out such investigations as it is reasonable to carry out immediately but the reasons must be recorded
This might include taking the suspect from one place to another to check an alibi, search of the arrested person, or entry and search of premises.
A constable who is satisfied that there are no grounds for keeping the arrested person under arrest or releasing on bail under s. 30A must release the person (s. 30(7) and (7A)), and the facts must be recorded (s. 30(8) and (9)).
An arrested person may, instead of being taken to a police station, be released either without bail or on bail, to attend at a police station on a future date.
A constable may release on bail a person who is arrested or taken into custody if the constable is satisfied that releasing the person on bail is necessary and proportionate in all the circumstances (having regard, in particular, to any conditions of bail which would be imposed).
Any decision to release on bail must be authorized by a custody officer
A person released under the PACE 1984, s. 30A (with or without bail), may be re-arrested without warrant if, since the release, new evidence has come to light or an examination or analysis of existing evidence has been made which could not reasonably have been made before the release.
Any person released on bail under s. 30A who fails to attend at a police station as required and any person whom a constable has reasonable grounds for suspecting has broken any conditions imposed may be arrested without warrant;
but the police have no power to arrest for an anticipated breach of conditions or failure to surrender.
The person must then be taken to a police station (which may be the specified police station or any other police station) as soon as practicable after an arrest.
Arrest without Warrant
Under s. 24 a police officer may arrest for any offence, but civilian powers of arrest are confined to indictable offences.
In both cases the power is subject to a test of necessity.
Powers of arrest are generally discretionary;
if the conditions are satisfied the officer (or civilian) may arrest but is not required to.
However, where a person has been arrested for an offence and is at a police station in consequence of that arrest, and it appears to the police that, if released, the person would be liable to arrest for some other offence, the person must be arrested for that other offence
Police Powers of Arrest
PACE 1984 S.24
(1) A constable may arrest without a warrant—
(a) anyone who is about to commit an offence;
(b) anyone who is in the act of committing an offence;
(c) anyone whom he has reasonable grounds for suspecting to be about to commit an offence;
(d) anyone whom he has reasonable grounds for suspecting to be committing an offence.
(2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.
(3) If an offence has been committed, a constable 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.
(4) But the power of summary arrest conferred by subsection (1), (2) or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.
(5) The reasons are—
(a) to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person’s name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name);
(b) correspondingly as regards the person’s address;
(c) to prevent the person in question—
(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 (subject to subsection (6)); or
(v) causing an unlawful obstruction of the highway;
(d) to protect a child or other vulnerable person from the person in question;
(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question;
(f) to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.
(6) Subsection (5)(c)(iv) applies only where members of the public going about their normal business cannot reasonably be expected to avoid the person in question.
Arrest for Breach of the Peace
Any person, whether constable or civilian, has a common-law power of arrest where (a) a breach of the peace is committed in the person’s presence, (b) the person effecting the arrest reasonably believes that such a breach will be committed in the immediate future by the person arrested, or (c) a breach of the peace has been committed or the person effecting the arrest reasonably believes that a breach of the peace has occurred and that a further breach is threatened.
An arrest must be for the purpose of bringing the person before a competent legal authority, but an arrest is lawful notwithstanding that the person is released before it was practical to bring the person before a court.
A breach of the peace occurs ‘whenever harm is actually done or is likely to be done to a person or in his presence to his property, or a person is in fear of being so harmed through an assault, affray, riot, unlawful assembly or other disturbance’.
Reasonable belief is an objective requirement in the sense that the court must determine whether the belief was reasonable having regard to the circumstances as perceived by the person carrying out the arrest at the time (Redmond-Bate v DPP).
Where a reasonable apprehension of an imminent breach of the peace exists, the preventive action taken must be reasonable, necessary and proportionate.
The power to arrest for an apprehended breach of the peace caused by apparently lawful conduct is exceptional.
Warrants Issued by Magistrates’ Courts
MCA 1980. Section 1 empowers a justice to issue a warrant on the basis of a written information substantiated on oath that a person has, or is suspected of having, committed an offence.
Such a warrant may or may not be endorsed (approved) for bail. If endorsed for bail, the warrant will (if relevant) specify the amounts in which any sureties are to be bound.
If bail is to be granted with sureties, the police must release the offender if the sureties approved by the officer enter into recognizances in accordance with the approval.
The person bailed is then obliged to appear before a magistrates’ court at the time and place named in the recognizance.
The power of a magistrates’ court to issue a warrant for the arrest of any person who has attained the age of 18 years is limited by s. 1(4).
The offence concerned must be indictable, or punishable with imprisonment, or the person’s address must be not sufficiently established for a summons to be served.
A warrant to arrest any person for non-appearance before a magistrates’ court must not be issued unless the offence to which the warrant relates is also punishable with imprisonment or where the court, having convicted the defendant, proposes to impose a disqualification.
Power is given under the MCA 1980, s. 13, to issue a warrant for the arrest of a person who has failed to appear to answer a summons.
Power to issue a warrant for arrest in respect of a person who has been granted bail and who fails to surrender to custody or who, having surrendered to custody, then goes absent before the court is ready to deal with the case.
Warrants Issued by the Crown Court
Section 80(2) of the Senior Courts Act 1981 provides that, where an indictment has been signed but the person charged has not been sent for trial, the Crown Court may issue a summons requiring that person to appear before it or may issue an arrest warrant.
A similar power applies where a person charged with or convicted of an offence has entered into a recognizance to appear at the Crown Court and fails to do so.
A warrant for arrest may be endorsed for bail, in which case the officer in charge of the police station to which D is taken has the same powers and duties as in the parallel case where the warrant is issued by magistrates.
Detention and Treatment of Suspects
Applicability of PACE and Codes of Practice
The PACE 1984 distinguishes between persons in police detention and others who may be held in custody at a police station.
A person is in police detention if the person has been taken to a police station after being arrested for an offence or has been arrested at a police station after attending voluntarily or accompanying a constable to it, and is detained there or detained elsewhere in the charge of a constable (PACE 1984 s.118(2)).
Similarly, a person is in police detention if in the custody of a designated civilian detention, investigating or escort officer.
A person who is at court after being charged is not in police detention neither is a person who attends a police station to answer to live link bail in accordance with a direction.
Many of the police powers in the PACE 1984 relate only to persons in police detention.
However, certain rights such as the right of intimation (under s. 56) and the right to legal advice (under s. 58), apply to persons arrested and held in custody at a police station or other premises, and apply irrespective of whether the person was arrested for an offence.
Custody Officer
Where a person has been arrested, that person must normally be taken to a police station.
The person may be taken to any police station, unless it is anticipated that detention of more than six hours will be necessary, in which case the person should be taken to a police station designated under s. 35.
One or more custody officers must be appointed for each designated police station.
A custody officer must be of at least the rank of sergeant.
If a custody officer is not readily available, or if a person is taken to a non-designated police station, another officer may perform the role although that officer must normally not be involved in the investigation of an offence for which the person is in detention.
Such a person may be detained at a police station only on the authority of the custody officer and may not be released except on the custody officer’s authority.
Generally, it is the responsibility of the custody officer to ensure that a person in police detention is treated in accordance with the PACE 1984 and the codes of practice, although responsibility is temporarily transferred to any officer to whom custody of the person is transferred in accordance with the codes of practice.
Custody Records
A custody record must be opened as soon as is practicable in respect of each person who is brought to a police station under arrest, or who is arrested at a police station after having attended voluntarily, or who attends a police station in accordance with bail.
A custody record does not have to be opened in respect of a volunteer who is not arrested.
The custody officer is responsible for recording in the custody record all matters that are required by the PACE 1984 or the codes of practice to be recorded.
If the detained person is transferred to another police station, the custody record or a copy of it must accompany the person, and must show the time of and reason for the transfer.
It is not clear whether a new custody record should be opened where a person is further detained on surrendering to custody following a release on police bail or whether the original custody record should be continued.
However, time in police detention before the release on bail will normally count for the purpose of calculating the maximum periods of detention
