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The police have a range of powers to arrest. We start with section 24 of the Police and Criminal Evidence Act 1984 (PACE) as amended by the Serious and Organised Crime and Police Act 2005 (SOCPA). Section 24 provides the police with the power to arrest without a warrant. PACE Code G 2012 not only provides safeguards for individuals but sets out guidelines for arrest by police officers. Section 24 is an enabling power which enables the police to respond to situations which may warrant arrest. The police, quite sensibly, do not have to wait and see if an offence is committed they may act upon reasonable suspicion.
In particular, the police have the power to arrest a person if:
a person has committed an offence (past);
is in the act of committing an offence (present);
is about to commit an offence (future);
if there are reasonable grounds for suspecting one of these occurrences (even if no offence is actually committed).
The police may use reasonable force to carry out the arrest under s117. Only reasonable force may be used to arrest. This will vary from one situation to another and the principle of what amounts to reasonable force raises the issue of 'proportionality' and necessity.
Proportionality means that the force used must be necessary and proportionate to the arrest and must be the least intrusive method. The police must ask themselves what their objective is and if what they are doing is proportionate. Is there a legal basis to their action and is it relevant and necessary? There should be a reasonable relationship between what they are aiming to achieve and how they are trying to achieve it. The police should also be asking themselves if there is a less intrusive way to achieve their objective. Could the objective be achieved with less impact on the subject's rights or on those of anyone else who could be affected by their actions?
Police are obviously trained in techniques in restraining people to limit or minimise the risk of harm to either themselves or others. The use or misuse of alcohol or drugs will play a big part in whether the response of the police is considered reasonable.
The European Convention on Human Rights may be relevant and the European Court of Human Rights has held in McCann v United Kingdom(1995) that any subsequent scrutiny will extend to the planning and control of arrest by the police. This includes taking reasonable steps to prevent a person self-harming or threatening to self-harm or carrying out acts intended to result in suicide. The Human Rights Act 1998, which gives further effect to the rights and freedoms guaranteed under the European Convention on Human Rights, is also relevant.
Whilst the question is primarily about the powers the police have to arrest, the police also have the power to search the arrested person for anything which might be used to help them escape, or for any evidence which might relate to an offence.
The police powers in PACE as amended by SOCPA do not exclude the existence of other powers and arrest for breach of the peace, a common law power, was preserved by section 26 of PACE. This is a very important power for the police and enables them to intervene where it is necessary to do so to prevent unlawful violence against people or property. Peace in this context means the Queen's peace. The importance of this common law power can be appreciated as a result of the case of R v Howell (1982) which brought the legal authorities together and concluded that the essence of the concept was to be found in violence or threatened violence. The definition of the term used in this case is that “there is a breach of the peace 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, an affray, a riot, unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without warrant." Interestingly a breach of the peace may occur on either public or private property.
The police have a power of arrest where conditions imposed on pre-charge bail have been breached. After a person has been charged they also have the power to arrest that person if they have a reasonable belief that he or she is likely to break any of the conditions of his bail or that they have a reasonable belief that he or she has broken any of those conditions.
In some circumstances they have specific power of arrests, e.g. aggravated trespass under the Criminal Justice and Public Order Act 1994. Trespass itself is a civil matter and not a criminal offence but aggravated trespass is an offence. The police are able to defend the interests of landowners by making arrests for ‘aggravated trespass’ if anyone tries to disrupt or obstruct lawful activity on private property. The offence of criminal trespass on a protected site is covered by sections 128 to 131 of the Serious Organised Crime and Police Act (SOCPA) 2005, as amended by section 12 of the Terrorism Act 2006. A protected site means either a licensed nuclear site or a designated site. In 2007 an order designated sixteen royal, governmental and parliamentary sites as protected sites, including Parliament. Arrest may be necessary as a last resort to deal with protesters such as hunt saboteurs or motorway protesters or any protesters who are trespassing on land, but it is not limited to protest groups.
Not surprisingly the police also have separate powers of arrest in terrorist cases. Section 41 of the Terrorism Act 2000 provides a special arrest power for use in terrorist cases. This covers cases where the police believe an arrest should take place but where there may not be enough evidence to charge an individual with a particular terrorist offence even though there is reasonable suspicion of involvement with terrorism.
The police have powers of arrest so that a police officer can arrest if he or she considers it a necessity but there are some offences where Parliament has deemed that it is only right that a warrant of arrest is obtained. The most common form of warrant is one under Section 8 of the Police and Criminal Evidence Act 1984. This requires written information to be set out before a magistrate, claiming that a person has or is suspected of committing an offence. The offence in question must be of a sufficiently serious nature, it must be an indictable offence or punishable with prison or it could be the case that the person's address is not sufficiently established .
So far we have looked at the police powers of arrest but these powers are subject to limitations. Section 24 provides the police with the power to arrest without a warrant but this same legislation now imposes a 'necessity' test and sets limits on when an officer has the power to arrest. This power is supplemented by detailed guidance in Code G on the issue of necessity. The outcome is that a police officer can only arrest if he or she has reasonable grounds for believing that it is necessary to make the arrest for one of a number of reasons. These include;
enabling the name and address of a suspect to be ascertained;
preventing the person from causing physical injury to himself or any other person, causing loss or damage to property, committing an offence against public decency or causing an unlawful obstruction of the highway;
to protect a child or vulnerable person;
to allow the prompt and effective investigation of the offence or the conduct of the person;
to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.
The arresting officer must make it clear to the individual that they are under arrest. Technical or legal words are not necessary provided they are told, they must also be informed of the offence for which they are being arrested. This information should be given at the time of arrest, or as soon as practicable afterwards. (Taylor v Chief Constable of Thames Valley Police which involved a 10 year old boy who was told he was being arrested for a violent disorder on an identified previous occasion).
The individual must also be told why the arrest is necessary e.g. 'I am arresting you for criminal damage and to prevent you causing criminal damage to property'.
A caution must be given along the lines “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.” The arresting officer must also make a record of the arrest.
An officer not in uniform must also identify themselves in order for the arrest to be lawful.
Section 76(2) PACE directs the court to exclude confession evidence from the trial process if it has been obtained as a result of oppression or in circumstances which are likely to make the confession unreliable. The Court of Appeal in the case of R v Fulling (1987) held that "oppression" was to be given its ordinary dictionary meaning and was likely to involve some impropriety on the part of the interrogator.
Sensibly the police have powers to search an arrested person for items which he might use to assist him to escape from lawful custody, or which might be evidence relating to an offence or if he presents a danger to himself or the police. However in a public place any suspect is only only required to remove their outer coat, jacket and gloves. A more detailed search must be undertaken in private.
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