The revisions to Police and Criminal Evidence Act and Codes of Practice (Code G) came into force at midnight on November 12th.
Are you a cop? Do you know what it means to you operationally? If you don’t then it’s time you did because you could find yourself with an unlawful arrest on your hands.
It’s very important to note that Code G is not new legislation. What it does is codify the existing legislation by virtue of the changes to s24 PACE (arrest powers) as enacted by the s110 of the Serious Organised Crime and Police Act 2005.
In lay terms this means that your SOCAP grounds to arrest (the necessity test) are now clarified within the Codes of Practice.
SOCAP grounds for arrest are not new. You will no doubt be familiar with “prompt and effective” or “to prevent further injuries” but it’s still surprising how many officers get this wrong. Many times when asked for the SOCAP grounds to make the arrest necessary I get a blank face whilst the officer trawls memories of a distant training course or stumbles over the one they think they have used.
“To allow him to be interviewed under caution Sarge”
To secure and preserve evidence Sarge
Whilst both the above may very well be part of the investigative process the officer wishes to follow they are not SOCAP grounds. Code G lists the grounds as an exhaustive list. They are recreated below and are to :-
- allow the prompt and effective investigation
- ascertain the persons name
- ascertain persons address
- prevent offence against public decency
- prevent an unlawful obstruction of the highway
- Prevent person causing loss or damage to property
- Prevent person causing physical injury
- Prevent the disappearance of the person
- Prevent the person suffering physical injury
- Protect a child or vulnerable person
The code is in many regards a document that should have accompanied the introduction of the necessity test. Regardless of timeliness the code doesn’t tell us anything we didn’t know. It does remind us though of matters that we may have overlooked in the past or, more realistically, interpreted another way.
It has been a topic of discussion at the National Custody Conference for at least the last 2 years and has been commented upon by Professor Michael Zander QC, FBA. Much of the debate revolves around necessity and whether voluntary arrangements are appropriate. Code G now states the officer should “consider whether the suspects voluntary attendance is a practical alternative to arrest”.
Two years ago Professor Zander cited the case of Richardson v Chief Constable of West Midlands Police  EWHC 773 (QB) by way of example. This in simple terms revolves around a teacher attending voluntarily to be interviewed about an assault allegation. He refused to accept a “local resolution” (I read this as RJ? – if you know different please let me know) and as such was asked to drive to another police station in his own vehicle. On arrival there he was arrested and booked into custody. Richardson subsequently claimed damages for unlawful arrest and won. In a nutshell Richardson was a compliant and cooperative suspect and therefore did not need arresting.
The thrust of the legislation steers officers away from arrest unless it is proved to be necessary. It is clear, at least from my perspective, that many officers still haven’t got a handle on this. It is, albeit SOCAP has been with us for some time, a culture change within policing. Arrestable offences gave us a direct power. It was discretion that determined if an arrest was made or not. In 99% of cases the power was exercised. This approach has been slow to erode. The changes now mean we can arrest for any offence but we must satisfy the necessity test. Failure to do so will make your arrest unlawful.
For police officers the PNLD details a number of interesting cases centred around s24 that are quite eye opening and well worth a read.
When considering an arrest ask yourself if you can do all you need to do without arrest and have the suspects cooperation. If the answer is yes then any arrest is likely to be unlawful.
There are some caveats of course. If a cooperative suspect suddenly declines to be interviewed then you are likely to have grounds to arrest. There are also matters such as searches (s18 PACE) or intimate/non-intimate samples (s62 and s63 PACE) where the suspect must be in police detention. There may also be occasions where even after interview bail may be appropriate to allow further investigation on forensic matters or similar. On such occasions bail conditions may be appropriate under s37(2) or s37(7)(a) of PACE. These would be limited to the Bail Act 1976 s3A(5) purposes; the likelihood of person failing to attend, interfering with witnesses, preventing further offending or for the suspects own protection. To my knowledge such powers cannot be applied to anyone not in custody.
I don’t propose to offer an exhaustive list of all scenarios to cover arrest necessity. There are a myriad of scenarios that are impossible to document. However, the routine practice of asking suspects to attend at a police station and arresting them on arrival could well be unlawful unless you have a specific need to arrest as exampled above, no matter how serious the offence. (Littering to a s18 wounding).
Custody Sgts are likely to more robust since the implementation of code G last week and as such you may find detention will not be authorised unless you can justify the necessity of it.