Monday, 4 October 2021

Arrest - some basic notes on a difficult topic

"You have eroded the confidence that the public are entitled to have in the police forces of England and Wales. It is critical that every subject in this country can trust police officers when they encounter them and submit to their authority, which they are entitled to believe is being exercised in good faith"
- Sentencing remarks - Lord Justice Fulford - 30 September 2021 - R v Couzens. 

Powers of arrest are a difficult legal topic but they have come to greater public prominence due to the actions of Wayne Couzens who kidnapped, raped and murdered Sarah Everard. Couzens was a serving Police Officer who purported to arrest Sarah as she was walking home having visited a friend. 

What does the law say about arrest and use of force?

Arrest with a warrant

An arrest may be authorised by the warrant of a Justice of the Peace - Magistrates' Courts Act 1980 section 1 which enables a JP to issue either a summons or issue a warrant to arrest an individual and bring him before a Magistrates' Court.. 

Arrest without warrant:

The Police

do not usually require such a warrant because the law gives Police Officers (Constables) immense powers. They are entrusted to exercise them properly.

The Police and Criminal Evidence Act 1984 section 24 is the principal power enabling the Police to arrest without warrant. The requirements set out in the section must be complied with strictly. Note that this power of arrest is exercisable only if the constable has reasonable grounds for believing that for any of the reasons in section 24(5) it is necessary to arrest the person in question.

If an arrest is not necessary it is open to the Police to ask the individual to attend at a Police Station for interview. Also, the individual could offer to do so voluntarily - see PACE section 29..

Ordinary citizens have a power of arrest but it is exercisable only in limited circumstances. This power is not discussed further in this post - Police and Criminal Evidence Act 1984 section 24A .

If there are no legal grounds for an arrest or if an arrest is made without following correct legal process then a civil action may arise for a tort (civil wrong) such as unlawful arrest or false imprisonment. Such actions are legally difficult and require specialist legal advice.

Following arrest:

An individual who is arrested must be informed that he is under arrest and the reason for the arrest - PACE section 28.  Also, where an arrest takes place outside a Police Station, the Police must take the arrested individual to a Police Station as soon as reasonably practicable - section 30.


PACE 1984 section 32 confers a power on the Police to search an individual following arrest. This power has specified limitations as set out in section 32.

The non-uniformed officer:

A Police Officer who is NOT in uniform continues to have Police powers. According to this BBC article, the College of Policing has stated that it would be "highly unusual for a plain-clothes officer to be working alone" and "if they are, it is standard practice that they should call other officers ..."

Any Police Officer - whether uniformed or not - should be able and willing to show a warrant card if requested to do so.

The same BBC article also refers to "off-duty Police Officers."  According to the article, they are expected to intervene if they see someone committing an offence or there is another need to protect the public - even when off duty. An officer can exercise most of their powers all the time - and as soon as they do so they are classed as being on duty.

Reasonable force:

The Police are entitled to use reasonable force when making an arrest - see Criminal Law Act 1967 section 3.and PACE 1984 section 117.  Handcuffing is one example of use of force and must be justified objectively - e.g. where the arrested individual is violent or likely to be violent.

According to this report by HMICFRS (January 2021), before April 2017 there was no national requirement to record use of force except in a number of specified cases such as Taser use. The report states that data regarding the use of force has been collected since 2017 but is 'not yet reliable enough to support definitive assessments'.

The use of unreasonable force may result in the the Police Officer being liable in tort (trespass to the person) or an offence (e.g. assault) may have been committed. In criminal proceedings, the Criminal Justice and Immigration Act 2008 section 76 comes into play. Whether the degree of force used was reasonable in the circumstances is to be decided by reference to the circumstances as the defendant believed them to be. 

Police Complaints:

Anyone who is concerned about Police conduct they have experienced should give serious consideration to making a complaint - see Independent Office for Police Conduct. The complaints process is a crucial part of the machinery available for maintaining Police standards.

PACE Code G:

Code G issued under the Police and Criminal Evidence Act applies to the statutory Police power of arrest.

According to the Code, an arrested individual must be cautioned unless (a) it is impracticable to do so by reason of their condition or behaviour at the time; (b) they have already been cautioned immediately prior to arrest. The words of the caution are -

"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 words "Do you understand" are often added in films / TV crime programmes. Those words are not part of the caution and thus there is no requirement to answer even if they are included.

This version of the caution was introduced following inroads into the right to silence brought about by the Criminal Justice and Public Order Act 1994. This is yet another area of complex law and is not pursued further here.


BBC 1 October 2021 - Sarah Everard: What you should do if you are stopped by the Police

The Guardian 1 October 2021 - Sarah Everard case: people stopped by lone officer could 'wave down a bus', says Met

Liberty 30 September 2021 - Liberty responds to the sentencing of Sarah Everard's killer

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