Necessity of arrest – an opportunity missed?

The police have always been granted a wide discretion when exercising their powers of arrest. A recent case brought by way of judicial review demonstrates a reticence on behalf of the judiciary to make rulings on points of principle which would have wider ramifications for this discretion.

When the police have reason to suspect that someone may have committed a crime, s24 Police and Criminal Evidence Act 1984 (PACE) specifies that an officer can only arrest if (s)he has reasonable grounds for believing that it is necessary to arrest for one of a number of specified reasons. As well as this being the officer’s honest belief, the decision must be one which is objectively reasonable.

The impact on the suspect of a decision to arrest cannot be overstated. An arrest will, in most circumstances, remain on the Police National Computer (PNC) indefinitely. The fact of having been arrested will be disclosed to employers in some circumstances, and needs to be disclosed before travel to certain countries (including the USA). It is therefore vital that police do not arrest as a default when it is not necessary to do so.

Individuals who the police want to interview under caution can act in a way which demonstrates that no arrest is necessary: agreeing to voluntarily attend the police station, and to remain for the full interview; agreeing not to speak to other individuals involved in the case; agreeing to voluntarily give the police access to electronic devices; and voluntarily consenting to a search of premises. In these circumstances, it is more difficult for police to demonstrate that it would be necessary to arrest.

The claimant in the recent case of R (on the application of TL) v Chief Constable of Surrey Police [2017] EWHC 129 (Admin) took all of these steps, following an allegation of rape made by his ex-partner. The claimant learned that the police wished to speak to him and took steps himself to contact them. He gave the police assurances that he would not speak to the complainant about her complaint, and made arrangements through his solicitor to attend the police station for interview. Despite doing everything right, on attendance at the police station, the claimant was arrested.

The officer relied on three reasons for arrest, all arising under s24(5)(e) PACE as being necessary to “allow the prompt and effective investigation” of the offence:

• Obtain evidence by way of questioning
• Prevent interference with the witness
• Search of premises and seizure of evidence

In the judgment given by Mr Justice Jay, the arrest was found to be unlawful (due to it being unnecessary) on the facts, without making any binding statements of principle or indeed any real criticisms of the police. This is unfortunate, as the case raised a number of important points of principle.

The most interesting point of principle related to the police’s attempt to justify the arrest on the basis that the claimant’s premises should be searched. The arrest of a suspect gives the police automatic powers under s18 PACE to search their home without a search warrant. Had the officers not arrested, the only way they could have searched the claimant’s premises would have been to apply to the magistrates’ court for a search warrant under s8 PACE. The defence’s contention was that if an application for a warrant would have been refused (as it would likely have been in this case), then to make a decision to arrest in advance of interview solely to procure s18 search powers was to circumvent the statutory scheme, and the tightly defined statutory criteria governing the issuing of a search warrant.

Mr Justice Jay’s conclusion was that “it is both unnecessary and undesirable to resolve the issue of principle in the circumstances of this case.” He did not try to disguise the fact that the reason for his hesitation was his concern about the potential wide-ranging consequences of finding for the claimant. However, the judgment made as clear as it could, without a positive ruling, that he effectively agreed with the claimant’s position, describing his arguments as having “very considerable force” and offering no support to the defendant’s arguments.

This is unsurprising as, on the face of it, the claimant’s position was plainly right. If a decision to arrest, made in advance of a planned interview (as opposed to an urgent, unplanned arrest where premises must be searched immediately to avoid destruction of evidence), can be justified solely to facilitate a s18 search, then the police’s powers of search and arrest become interlinked and practically unfettered. The prerequisite for the arrest is the desire to search; and the prerequisite for the search is the arrest.

It follows that in any case where an officer had reasonable grounds to suspect an individual of having committed an offence, the safeguards inherent in the s8 search warrant application could be lost. That was plainly not the intention of Parliament when drafting the statutory scheme. In the absence of a statement of principle from the court that a s8 application should be used in all circumstances where there is no immediate urgency of search, s24 PACE remains sufficiently ambiguous that officers can circumvent the s8 application procedure.

Mr Justice Jay was explicit that he was concerned about the “far-reaching consequences” of ruling in favour of the claimant. He also expressed the understandable concern that he would require both more detailed exploration on the differences between s8 and s18, and input from the Home Office as to the impact on PACE Code G in order to do so. This is nonetheless a frustrating position. The purpose of judicial oversight is to clarify ambiguities in the law, thereby providing certainty for citizens. This judgment does the opposite, by recognising and explaining the present ambiguity in the law, but choosing not to make any ruling on the correct way to interpret it.

This case therefore presents a missed opportunity. The lack of clarity on important questions relating to the manner in which agents of the state are entitled to exercise their coercive powers needs to be resolved. In the absence of judicial certainty, Parliament should issue guidance so that no person suffers the detrimental consequences of arrest unless this course of action is truly necessary and proportionate.