Chapter Updates for Police Powers of Arrest
Sections 110, 111 and Schedule 7 to the Serious Organised Crime and Police Act 2005 have completely reshaped the basis of arrest powers both for the police and ordinary citizens. An overview of the new arrest regime is as follows:
The Previous Arrest Framework
Prior to section 110 of the Serious Organised Crime and Police Act 2005 coming into force, police arrest powers (and those relating to ordinary citizens) were based largely on the concept of arrestable (and serious arrestable) offences under section 24 and Schedule 1A of PACE. The police also had powers of arrest under section 25 of PACE known as ‘general arrest conditions’. This enabled them to make an arrest for virtually any offence if certain conditions were present. A number of police powers of arrest also stemmed from other statutes such as the Public Order Act 1986, the Criminal Justice and Public Order Act 1994 and the Criminal Justice and Police Act 2001, to name but a few. In addition to statutory powers of arrest, there was (and still is), the common law power to arrest in order to prevent or deal with a breach of the peace. As far as ordinary citizens were concerned, they too could, and may still, rely on this common law power as well as the police. Ordinary citizens were also able to make a citizens’ arrest if an offence was categorised as arrestable under PACE, but under more restricted circumstances than the police. Also, there were a few statutes that conferred a power of arrest on ‘any person’, which applied to both the police and ordinary citizens.
The definition of arrestable offences under section 24 and Schedule 1A of PACE was very complex. First, any offence for which the sentence was fixed by law was classed as an arrestable offence (in practice this now only applies to murder). Secondly, any offence that could bring a term of imprisonment for 5 years or more was also automatically arrestable. Thirdly, there were a large number of offences listed under Schedule 1A of PACE which were also arrestable, even though they fell short of the 5 year imprisonment criteria. In addition to arrestable offences, there were also a number of serious arrestable offences that were defined under section 116 and Schedule 5 of PACE. These included some of the most serious crimes such as manslaughter, robbery, hostage-taking, torture, drug trafficking, and rape, as well as a host of other serious sexual offences.
The New Arrest Framework Under SOCAP
The Serious Organised Crime and Police Act 2005 (SOCAP) has, among other things, made very significant changes to the structure of other police powers. As will be mentioned later under Chapter 4, entry and search powers in relation to premises are among those affected by SOCAP, as well as powers of arrest. The earlier concept of arrestable (and serious arrestable) offences under PACE, that was used as the main criteria in the exercise of many police powers, has now been abolished by SOCAP. The new criteria is now almost entirely based on whether an offence is indictable. This legal term could be misunderstood as some may interpret it as meaning offences that are triable only on indictment. These offences are among the most serious crimes that can only be tried before a jury in the Crown Court. However, the term ‘indictment’ within the context of SOCAP not only means these most serious offences but it also includes offences that may be tried on indictment in the Crown Court. This refers to crimes that are triable either way, meaning that they may be tried either summarily before magistrates’ courts or on indictment in the Crown Court. The term indictable offence therefore means any of these categories of offences.
SOCAP has also restructured section 24 of PACE and created a more streamlined basis under which the police may make arrests. It has also repealed nearly all the other statutory sources of police powers of arrest, although the common law power to arrest to prevent or deal with a breach of the peace has been preserved. Under the new section 24, the police may make an arrest for any offence provided certain conditions exist (see below). With regard to ordinary citizens, a new section 24A has been inserted under PACE. This enables a citizen’s arrest to be made provided the offence is indictable, as well as other conditions that have to be met (also see below).
It may be interesting to compare these provisions under the Serious Organised Crime and Police Act 2005, to those reproduced in Chapter 9. Among other things, the SOCAP Bill included the intention to abolish any common law power of arrest without warrant. Had this been enacted, it would have removed the common law power to prevent or deal with a breach of the peace from both the police and ordinary citizens. Also, the proposed s.24A of PACE under the Bill would have given non-police officers much greater powers of arrest by enabling them to arrest for any offence, although subject to certain conditions. The 2005 Act has limited this power to indictable offences which significantly reduced the scope for making a citizen’s arrest compared to the original proposals.
POLICE POWERS OF ARREST WITHOUT WARRANT.
SECTION 24 OF THE POLICE AND CRIMINAL EVIDENCE ACT 1984
(AMENDED BY SECTION 110 OF THE SERIOUS
ORGANISED CRIME AND POLICE ACT 2005)
110 Powers of Arrest
(1) For section 24 of PACE (arrest without warrant for arrestable offences) substitute -
“24 Arrest without warrant: constables
(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
(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
(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
NOTE: The common law power to arrest in order to prevent or deal with a
breach of the peace is still available to the police.
ORDINARY CITIZENS’POWERS OF ARREST WITHOUT WARRANT.
SECTION 24A OF THE POLICE AND CRIMINAL EVIDENCE ACT 1984
(INSERTED BY SECTION 110 OF THE SERIOUS
ORGANISED CRIME AND POLICE ACT 2005)
“24A Arrest without warrant: other persons
(1) A person other than a constable may arrest without a warrant -
(a) anyone who is in the act of committing an indictable offence*;
(b) anyone whom he has reasonable grounds for suspecting to be
committing an indictable offence.
(2) Where an indictable offence has been committed, a person other than 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
(3) But the power of summary arrest conferred by subsection (1) or (2) is
exercisable only if -
(a) the person making the arrest has reasonable grounds for believing that for
any of the reasons mentioned in subsection (4) it is necessary to arrest the
person in question; and
(b) it appears to the person making the arrest that it is not reasonably
practicable for a constable to make it instead.
(4) The reasons are to prevent the person in question -
(a) causing physical injury to himself or any other person;
(b) suffering physical injury;
(c) causing loss of or damage to property; or
(d) making off before a constable can assume responsibility for him”
(2) Section 25 of PACE (general arrest conditions) shall cease to have effect.
[Note: this is one of several earlier sources of police powers that has now
been subsumed under the new section 24 of PACE].
(3) In section 66 of PACE (codes of practice), in subsection (1)(a) -
(a) omit “or” at the end of sub-paragraph (i),
(b) at the end of sub-paragraph (ii) insert “or (iii) to arrest a person;”
[Note: this means that arrests will now be subject to codes of practice]
(4) The sections 24 and 24A of PACE substituted by subsection (1) are to have
effect in relation to any offence whenever committed.
NOTE: The common law power to prevent or deal with a breach of the peace
is still available to ordinary citizens.
* The term ‘indictable offence’ means an offence which is triable only
on indictment or an offence which may be tried on indictment (in other
words triable either way).
For a full discussion on this topic, see Jason-Lloyd, L. The New Arrest Framework Under the Serious Organised Crime and Police Act 2005 - An Overview in Justice of the Peace, Volume 169, Number 43, October 22nd, 2005.
There are several hundred indictable offences (see Blackstone’s Criminal Practice, and Archbold’s Criminal Pleading, Evidence and Practice). However, many of them rarely come to light, if ever. Some examples of the more well-known indictable offences are listed below, beginning with indictable only offences followed by offences that are triable either way:
Triable only on Indictment
Murder, manslaughter, robbery, assault with intent to rob, rape, kidnapping, riot, blackmail, hostage-taking, aggravated burglary, wounding or causing grievous bodily harm with intent, administering poison, aggravated criminal damage, aggravated arson, possession of firearm with intent to endanger life or injure property, possession of firearm or imitation firearm with intent to cause fear of violence, use of firearm or imitation firearm to resist arrest, carrying firearm or imitation firearm with intent to commit indictable offence, causing explosion likely to endanger life or property, causing death by dangerous driving, causing death by careless driving when under the influence of drink or drugs, perjury in a judicial proceeding, perverting the course of justice.
Triable either way
Theft, violent disorder, affray, fear or provocation of violence when racially aggravated, intentionally causing harassment, alarm or distress when racially or religiously aggravated, assault with intent to resist or prevent arrest, dangerous driving, assault occasioning actual bodily harm, wounding or inflicting grievous bodily harm, handling stolen goods, making off without payment, false accounting, forgery, obtaining property by deception, obtaining services by deception, burglary (most forms), going equipped for stealing, money laundering offences, simple criminal damage, simple arson, possession of an article with intent to destroy or damage property, and the vast majority of drug offences (this includes their unlawful possession, supply, possession with intent to supply, and manufacture, as well as cultivating the cannabis plant, and allowing certain drug activities on premises).
Pages 91 and 214. The following case should be noted. In R(W) v Commissioner of Police for the Metropolis and another, Secretary of State for the Home Department as interested party (2005), it was held that s.30(6) of the Anti-social Behaviour Act 2003 did not confer a police or community support officer with the power to use force in order to remove an under 16 year old to his or her place of residence, although such a person could be taken home if willing to be taken there. However, he or she could still be subject to a direction under s.30(4) of the 2003 Act (the power to make directions requiring persons to disperse, or leave the locality if a non-resident there, and to prohibit such persons from returning there within 24 hours).
Code of Practice for the Statutory Power of Arrest by Police Officers
The introduction of Code G on 1st January 2006 constitutes the first occasion when codes of practice were published regarding arrests. Some of the main aspects of this new code will be reproduced as follows:
‘1.2 The right to liberty is a key principle of the Human Rights Act 1998. The exercise of the power of arrest represents an obvious and significant interference with that right.
1.3 The use of the power must be fully justified and officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means. Arrest must never be used simply because it can be used. Absence of justification for exercising the powers of arrest may lead to challenges should the case proceed to court. When the power of arrest is exercised it is essential that it is exercised in a non- discriminatory and proportionate manner.
2.1 A lawful arrest requires two elements:
A person’s involvement or suspected involvement or attempted involvement in the commission of a criminal offence; and
Reasonable grounds for believing that the person’s arrest is necessary.
2.2 Arresting officers are required to inform the person arrested that they have been arrested, even if this fact is obvious, and of the relevant circumstances of the arrest in relation to both elements and to inform the custody officer of these on arrival at the police station. See Code C paragraph 3.4.
2.4 The power of arrest is only exercisable if the constable has reasonable grounds for believing that it is necessary to arrest the person. The criteria for what may constitute necessity are set out in paragraph 2.9. It remains an operational decision at the discretion of the arresting officer as to:
· what action he or she may take at the point of contact with the individual;
· the necessity criterion or criteria (if any) which applies to the individual; and
· whether to arrest, report for summons, grant street bail, issue a fixed penalty notice or take any other action that is open to the officer.
2.6 Extending the power of arrest to all offences provides a constable with the ability to use that power to deal with any situation. However applying the necessity criteria requires the constable to examine and justify the reason or reasons why a person needs to be taken to a police station for the custody officer to decide whether the person should be placed in police detention.’
Paragraph 2.9 repeats the criteria stated under s.110 of the Serious Organised Crime and Police Act 2005 that may justify making an arrest. Some useful examples are reproduced as follows:
‘(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question. This may include cases such as:
(i) Where there are reasonable grounds to believe that the person:
· has made false statements;
· has made statements which cannot be readily verified;
· has presented false evidence;
· may steal or destroy evidence;
· may make contact with co-suspects or conspirators;
· may intimidate or threaten or make contact with witnesses;
· where it is necessary to obtain evidence by questioning; or
(ii) when considering arrest in connection with an indictable offence, there is a need to:
· enter and search any premises occupied or controlled by a person
· search the person
· prevent contact with others
· take fingerprints, footwear impressions, samples or photographs of the suspect
(iii) ensuring compliance with statutory drug testing requirements.’
The code later goes on to provide guidance regarding information to be given on arrest including the terms of the caution, much of which is already in pages 77- 78 and part of page 79 of the book. It then provides guidance in respect of records of arrests as follows:
‘4. Records of Arrest
4.1 The arresting officer is required to record in his pocket book or by other methods used for recording information:
· the nature and circumstances of the offence leading to the arrest
· the reason or reasons why arrest was necessary
· the giving of the caution
· anything said by the person at the time of arrest.
4.2 Such a record should be made at the time of the arrest unless impracticable to do. If not made at that time, the record should then be completed as soon as possible thereafter.
4.3 On arrival at the police station, the custody officer shall open the custody record (see paragraph 1.1A and section 2 of Code C). The information given by the arresting officer on the circumstances and reason or reasons for arrest shall be recorded as part of the custody record. Alternatively, a copy of the record made by the officer in accordance with paragraph 4.1 above shall be attached as part of the custody record. See paragraph 2.2 and Code C paragraphs 3.4 and 10.3.
4.4 The custody record will serve as a record of the arrest. Copies of the custody record will be provided in accordance with paragraphs 2.4 and 2.4A of Code C and access for inspection of the original record in accordance with paragraph 2.5 of Code C.’