Is an arrest necessary or practical?

If a person is arrested it not only deprives them of their liberty but it means they have an arrest record and all of their biometric data (fingerprints, DNA) remains on the Police National Computer for an indefinite period of time even if they are never prosecuted. This may have consequences in the future in terms of employment and travel to different jurisdictions. It is therefore important to ensure that the police exercise their power of arrest properly and in a proportionate manner.

The recent case of Richardson v The Chief Constable of West Midlands [2011] EWHC 773 QB has for the last three months proved to be invaluable to defence lawyers when arguing with police officers that it is not necessary to arrest an individual in order to conduct an interview under caution. In 2005 s24 of PACE was amended to make all offences arrestable offences, but only if arrest was necessary (and the section lists a number of reasons which would make an arrest necessary).

Since then, and until the case of Richardson, defence lawyers have been confronted with police officers who routinely used their power of arrest wrongly. Sometimes this was in ignorance of the law but often it was because in their view ‘necessity’ equated to ‘desirable’ or ‘helpful’ or because arresting people prior to interviewing them was police policy (none of which are reasons within s24).

As a result there has, until now, been a flagrant disregard for the law and, importantly, for the rights of the individuals under investigation. This attitude was no doubt fuelled by the mistaken belief that an officer’s decision to arrest was beyond reproach – they were rarely challenged and if such a challenge was mounted it was rarely upheld. However, the High Court has now ruled that the arresting officer must justify why it is necessary to arrest and if he or she does not do so then the arrest could be unlawful and the subsequent detention of an individual would amount to false imprisonment.

The recent, and much publicised, case of R (Chief Constable of Greater Manchester Police) and Salford Magistrates Court v Hookway [2011] EWHC 1578 (Admin) is also relevant since it lends support to the argument not to arrest, albeit for different reasons to Richardson. In Hookway the court ruled that the detention period after arrest (maximum of 96 hours) is fixed – i.e. the 96 hours cannot be interrupted and will expire after that period.

So, if a person is arrested and then bailed to return to the police station after the 96 hour detention period has expired (which happens in the majority of cases), whilst that person is obliged to turn up at the police station, he or she cannot be detained –  for example for a further interview –  unless the police have new evidence to justify a re-arrest.

Police officers will now have to be mindful of the serious restrictions on the opportunity to detain a person for questioning and also the increased administrative burden on them if they have to justify a further arrest on each occasion (which will inevitably be open to challenge on the grounds of necessity). So in cases where the police investigation will take longer than 96 hours (4 days), a police officer may well be more easily persuaded that it is in the interests of all parties that any interview is carried out on a voluntary basis and not under arrest.

It will be interesting to see how the emergency legislation announced by the government today might change this. Look out for a further blog on this subject.

Corker Binning is a law firm specialising in fraud and criminal matters of all kinds.  For more information call us on 020 7353 6000.