Arrested Developments

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”

or

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 :-

  1. allow the prompt and effective investigation
  2. ascertain the persons name
  3. ascertain persons address
  4. prevent offence against public decency
  5. prevent an unlawful obstruction of the highway
  6. Prevent person causing loss or damage to property
  7. Prevent person causing physical injury
  8. Prevent the disappearance of the person
  9. Prevent the person suffering physical injury
  10. 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 [2011] 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.

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22 thoughts on “Arrested Developments”

  1. Where I work in a very rural location its nearly 90 miles to custody and back, so we don’t tend to arrest unless its absolutely necessary anyway.
    One of the problems we do get is with regards to shoplifters and its this.
    A shoplifting crime occurs, we attend, and if the suspect is gone then its usually a matter of taking statements, and collecting cctv.
    Cctv is then sent off to HQ as we have no way of looking at it at the station, and a few weeks later its sent back so it can be played on our car DVD player(I kid you not) with its 6″ screen.
    The problem is that with a prolific offender who is NFA and fails to appear, quite often they’re wanted for questioning for 5 or 6 crimes before we catch up with them, they’re then arrested for the whole lot and taken to custody where they’re interviewed about the whole lot.
    Now though, we’ve been told that we can only arrest them for one offence, interview them, de-arrest, then arrest them for the next one, and so on!
    It takes about half an hour minimum to book someone in, and that’s without queuing, and with the time taken to travel to custody and back, if someone is going to be questioned for more than a couple of offences, then its not going to happen without running into overtime.
    We’ve been told its against their human rights to arrest them for several offences at once, the problem I can see is that its going to waste a lot of officers and custody officers time.

    1. The technology issue sounds infuriating and clearly needs addressing. A laptop with the correct software would sort all those issues instantly.

      Arresting and interviewing for all the known offences in custody is normal and ensures no abuse of the PACE clock. The next bit I don’t understand though. Is this in custody or is this at your local station?

      It is not against anyones human rights to be arrested for all the offences they are suspects for. That’s the law.

      Look forward to getting some clarification from you as the situation you describe sounds unlawful.

      1. Re my initial comments, I haven’t heard it directly as I haven’t had any training or info at all re the new code G, I’m due to attend some training in the next few days, and I’ll try and get some clarification then.

      2. I’ve had my training now, and can answer first hand what I was told.
        Basically if someone is wanted for several offences, if I’m not the OIC for all the crimes then I have to liase with whoever the OIC is before I can arrest or speak to them about that OIC’s crimes, as that OIC may believe that they don’t need arresting to speak to them about it, so if I arrest them for that OIC’s crime(s) then it could be seen as an unlawful detention as they might be willing to be interviewed about that officers crime(s) non custodially.
        In reality though the chances are the OIC I need to speak to is more than likely to be off duty, and on that basis all I can do is let them go re that OIC’s crime(s), and hope the suspect will give me some contact details to pass to the OIC.
        The trainers have told us its going to be a major pain for officers, but at the end of the day we can’t detain someone unlawfully; they kept on about people suing the force though so it could be a money issue for the force as well.

    2. I think your Force needs to check its knowledge of sec 30 PACE – if you know an offender in custody is wanted for other offences you’re obliged to arrest them – anything else is an abuse of the PACE clock.
      Who in your Force has said it’s against their human rights to be arrested for more than one at a time – and have you been ‘told’, i.e. there’s a Force Order, or is this just some weary Custody Officer who thinks he knows PACE better than he does?

  2. I agree entirely with the new COP, but the problem I have with a lot of custody officers is that they think it is THEM who have to satisfy the necessity test.
    It isn’t. If an officer comes to you with an arrest, it is that officer who has to provide the grounds for it, and that officer who risks action if they don’t have any ‘necessity’ criteria.
    When the arrested person comes before the custody officer, the custody officer MUST presume that the arrest is lawful, has been justified, and that the necessity criteria exist. The ONLY contact a Custody Officer has with sec 24/sec 110 is recording the necessity criterion/criteria that the arresting officer reports he is relying on.
    It’s not the job of the Custody Officer to question whether the arrest is lawful – they’re entitled – I would argue required – to assume that it is.
    Whether or not the arrest is necessary per sec 24 has no bearing on the Custody Officer’s decision – that decision should be solely based on whether grounds exist for continuing detention under sec 37 PACE.
    Custody Officers willing to criticise arresting officers’ knowledge of sec 24 ought to take care in that criticism if they themselves are lacking in the knowledge of their own parts of PACE.

    1. I know where you are coming from. However Code G para 1.4 makes it clear. The job could quite quickly go down the toilet.

      Professor Zander also agrees and stated at National Custody Conference that “custody officers should not authorise detention, the error should not be compounded and as supervisors we should look to put things right at the earliest opportunity”.

      1. I wouldn’t call Para 1.4 ‘clear’. It says ‘the arrest and the conduct of any subsequent investigation MAY be called into question.’
        Professor Zander, whilst an expert, is not the legislator. The lawful authorising of detention following an unlawful arrest may not compound the problem, and unfortunately, PACE does not include anywhere in its description of a Custody Officer that of ‘supervisor’
        Don’t forget, all the information I, as an arresting officer, need to give to the Custody Officer is what the person has been arrested for, and the named necessity criteria I am relying on. I don’t need to go into the nitty gritty.
        I will repeat my assertion, as I’m still not sure that it is understood that Custody Officers are overstepping their role – The Custody Officer DOES NOT need to concern himself with testing/agreeing with the Arresting Officer’s grounds and necessity criteria, just record those that are given to him.

      2. That works until a serious offender walks out of a court a free person because of an unlawful arrest. Extreme but entirely possible.

        Even so. For a victim the offence, no natter how classified by law is serious to them. If offender walks free because of an unlawful arrest then where is public confidence?

        Furthermore a refused detention for an unlawful arrest saves the force a considerable sum in compensation. Something we need to be avoiding in the current financial situation.

  3. On 17 June 2008, a complaint was made to the police by a Mr Mooney that Mr Hayes had threatened and assaulted him several days previously demanding monies owed for the purchase of cocaine. A decision to arrest Mr Hayes was made on 24 June 2008. The police tracked down Mr Hayes’s telephone number from his mother and were able to speak with Mr Hayes at 21.00 on 26 June 2008. A meeting was arranged for that evening and Mr Hayes was arrested. Mr Hayes was taken into custody and detained at the police station at 22.33; he chose to see the duty solicitor who was not available immediately and Mr Hayes was placed in a cell. Mr Mooney was then contacted by the police to inform him of the arrest but Mr Mooney decided to retract his complaint; he did not resile from his retraction even after a visit from the police. However, it was never alleged that the allegations were not true. Mr Hayes was then released at 00.58. Mr Hayes sued the Chief Constable for wrongful arrest and unlawful detention; he lost at first instance and appealed to the Court of Appeal on two grounds: (a) that the arrest was not necessary as the police had not looked at all possible alternatives; and (b) that the arrest became unlawful when Mr Mooney first retracted his complaint.

    The principal issue on the appeal was whether the necessity requirement in s24 of PACE requires that a police officer “must actively consider all possible courses of action alternative to arrest; he must have taken into account all relevant considerations and have excluded all irrelevant ones.” The Court of Appeal rejected that proposition as wrongly incorporating a public law test into the decision to arrest. There are three significant features to the decision:

    (1) First, the Court set out the test to be applied when deciding whether the necessity criterion is satisfied. This is a two-stage. First, that the constable actually believes that arrest is necessary for an indentified subsection s24(5) reason. Second, that objectively that belief was reasonable: see [21], [30] – [35], and [42]. The Court rejected the submission that there was also a requirement, in order to found a lawful arrest, that the arresting officer should have actively considered all possible courses of action alternatives to arrest; to have taken all relevant considerations into account; and have excluded all irrelevant ones: see [18], [30], and [42].

    (2) Second, the Court held that that voluntary attendance at a police station is not always as effective a form of investigation as interview after arrest. It would not be honest, given s29 of PACE, for an officers to tell a suspect that he may leave the police station at any time if he intended to arrest him the moment that he decided to leave. Moreover, it would not be effective given that the suspect would be free to interrupt questioning the moment that he found a question or topic difficult: see [42].

    (3) Third, the Court suggested that when deciding whether an officer’s belief that arrest was necessary was objectively justified, the Court will ask itself whether the decision of the arresting officer was unreasonable in the sense that no reasonable arresting officer could reasonably have reached that conclusion: see [36].

    Applying that test, the court found for the Chief Constable. The court also found that the proposition that the detention became unlawful upon Mr Mooney first retracting his complaint was unarguable; and that the Chief Constable succeeded on that ground as well.

    Jason Beer QC acted for the Chief Constable of Merseyside Police. Jason is experienced in public law, police law and inquiries and was described in Chambers 2011 as “phenomenally bright” and as a barrister who “stands out head and shoulders above the rest”. Jason frequently appears in the appellate courts.

  4. I have only just found this blog…interesting stuff.

    @ginnersinner ‘I will repeat my assertion, as I’m still not sure that it is understood that Custody Officers are overstepping their role – ‘

    I’m not sure if you have problems with custody officers round your way but it’s quite simple. If an arresting officer cannot satisfy me to MY requirement that the arrest is lawful and necessary then I will not authorise detention. If your not happy about that then find another custody block that will. Custody officers should not forensically examine the circumstances of arrest but they need sufficient information for them to satisfy themselves that they can justifiably continue to detain a person.

    I do not need PACE to determine that I am a supervisor; My rank does that, although PACE does say that you will need an officer of at least the rank of Superintendent to overturn my decision. I am not a servant of arresting officers, I am a gateway to the criminal justice system that is bound by legislation to preserve the rights and entitlements of detainees and that includes determining those that should never have been detained in the first place whilst maintaining, rather than jeopardising, the integrity of any subsequent investigation.

  5. I wonder whether anyone can give me a second opinion and check my understanding of the revised code G. The hypothetical circumstances are: a colleague was asked to attend a police station to voluntarily answer questions as part of an ongoing investigation. The colleague agreed and attended with a solicitor at the agreed time. They were met by the interviewing officer, who informed them that they now wished to speak to my colleague about another unrelated criminal matter. The colleague and solicitor agreed to be interviewed, but the investigator informed them that he was going to arrest and get the colleague booked into custody. The solicitor and colleague queried this, why is there a need for an arrest ? Answer – “because we want to search your house under a s18.” No problem says the colleague, here’s my house keys, you have my consent to search it, go and fill yer boots ! Nevertheless the interviewing officer took the colleague and solicitor to the custody sergeant and related the facts. The solicitor reiterated to the custody officer that his client has attended voluntarily, is happy to be interviewed and has given full consent for their home address to be searched. He is adamant that arrest and detention of his client is unnecessary. Somewhat to my surprise I’m told that the custody sergeant agreed to authorise detention. The interview took place, the search took place and the colleague spent just short of 6 hours in custody before being released on bail in order for further enquiries to be conducted.
    For the life of me, I cannot conceive of any rationale that would make that arrest and detention lawful under the revised codes… am I missing something ?

    The example above may or may not actually be hypothetical, I may or may not be a federation rep and the colleague may or may not be a police Officer (not that would alter the lawfulness or otherwise of the arrest,) and the investigator may or may not be a PSD officer. I think they’ve got this badly wrong, but perhaps its just me.

    What do you think, Lawful arrest or unlawful arrest ??

    1. Based on circumstances you relay it would appear, on the face of it, to be an unnecessary arrest. Consent for the search can be granted by the owner and if wholly compliant and cooperative, why arrest?

      There may have been issues about disposal of evidence? The non arrested person can call who they like and potentially arrange disposal of evidence. That call can be done away from officers as not under arrest and cannot be held incommunicado. This may have been a consideration?

  6. Spot on I reckon. My advice to officers is always to consider what the investigation may lose if an arrest is not made and whether you can achieve the same ends without arresting. If so then you cannot arrest. In this case it seems obvious to me that if the ‘hypothetical’ detainee was willing to accompany the officer to the house while it was searched then an arrest would not have been necesarry. It is often beneficial to have the homeowner present during a search anyway and, of course, as soon as they interfere or impede the search, you can then arrest for a prompt and effective investigation and couldn’t possibly be criticised for doing so.

  7. An opinion please. A serving police officer was recently arrested based in the following set of circumstances. He and his partner had recently separated and had a fall out at work (both are police officers)after the organisation put them on the same course knowing the circumstance. He attended the marital home and ripped up some cards and letters sent to and from each other over the years. He sent his wife a picture via phone of this, she ultimately left work to return home. Her husband had left at this point and 2 officers were sent by her line manager for a safe and well. After these officers left she contacted her husband and asked him to return back home. He did and shortly afterwards the 2 other officers returned back again to perform a safe and well. They left satisfied by both that they things were ok and there attendance was not necessary. The husband left the home to return to his temporary place a residence some 50miles away. En route though he attended a police station again some distance away to meet his line manager, he did this as he had earlier sent him a message asking to talk. The line manager kept him talking for sometime and about 30-40mins later he was arrested for criminal damage. The arresting officer did not inform him of the necessity for arrest and when asked by the officer under arrest was told “because it’s been decided”. There was no complaint of damage from the alleged victim. He was kept in custody for several hours and interviewed, again there was no complaint statement and the interviewing officers were asked if the alleged victim had been seen. They said she had but they would see her again in the morning (in another attempt to see if she would make a statement). The officer was then bailed for 7 weeks with some extremely severe conditions that you would only put on somewhere for serious domestic violence. The question was asked why 7weeks to which the response was “there will be a psd investigation running alongside it” this was challenged as it would be illegal to do that as bail is for criminal matters. The response was then changed to “it takes time to piece things together”. I and others find it difficult to believe that downloading a mobile phone and speaking to one person again takes so long. What are your thoughts on these circumstances?

    1. It’s always very difficult, even with the circs you outlive to give a definitive answer. There are always two sides.

      That said, on the account you relay, the arrest seems to be unnecessary. No immediate threat of harm. Compliant. Was officer invited to be interviewed about the allegation as a voluntary attendee? If not why not?

      If no complaint what evidence did they put to him in interview? I assume he was represented?

      Bail in such circs seems odd and should generally have been a swift NFA. Tying into a PSD investigation appears to be wholly inappropriate and should run separate from any criminal matters.

      It sounds very much like an arrest buried into justification by “positive action”.

      I can only hope the officer is represented and the Fed are all over it.

  8. Interesting post read in conjunction with The Lord Hannigfield judgement. I think the abuse of the power of arrest is abused in cases were a fishing trip ie a sec18 is desired and there is not enough evidence for a warrant to be sworn out. As a serving officer I’ve been the subject of this and I feel I have a case of wrongful arrest.

    1. I have recently been the subject of arrest and detention for questioning. Officers arrived at my address as i was getting ready for work and arrested me for data protection breaches. A S8 warrant was produced for the search of my home, mine and my husbands cars. There are several issues with the warrant, not least the address being incorrect and I intend to challenge this. My issue is that I do not believe the arrest was necessary. I was wholly compliant and co operative, giving consent for my new car to be searched as they had my old car listed on the warrant. At no time was I asked if I was willing to be voluntarily interviewed, which I would have of course been happy to do. No other sections of code G apply. Your thoughts would be appreciated.

  9. I would like to hear your thoughts on this………..Having carried out a warrant under Sec 23 MDA and found evidence of cannabis production, the suspect is arrested and street bailed to attend the station in a weeks time.

    There are no further searches to be carried out and no likelihood of the suspect disappearing. Can the suspect not be voluntarily interviewed? He has no previous and no indication that he wouldn’t turn up to interview. I’m struggling to find a necessity to arrest under Code G…………advice please.

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