Unlawful Arrest

Unlawful Arrest

To pursue a claim for unlawful arrest, the burden is on the Chief Constable of any police authority to justify the arrest.

A constable may arrest without warrant:

Anyone who is about to commit an offence
Anyone who is in the act of committing an offence
Anyone who he has reasonable grounds for suspecting to be about to commit an offence
Anyone who he has reasonable grounds for suspecting to be committing an offence

If a constable has reasonable grounds for suspecting that an offence has been committed may arrest without warrant anyone who he has reasonable grounds to suspect of being guilty of it.

If an offence has been committed, a constable may arrest without warrant:

Anyone who is guilty of the offence
Anyone who he has reasonable grounds for suspecting to be guilty of it

Whilst the above criteria is helpful in understanding arrest without warrant conditions the Power of Arrest summary as set out above is only exercisable if the constable has reasonable grounds for believing it is necessary to arrest the person in question.

Unlawful arrest

The necessity reasons are:-

To enable the name of the person in question to be ascertained (in a case where the constable does not know and cannot readily ascertain the persons name) or has reasonable grounds for doubting whether a name given by the person as his name is his real name

Correspondingly as regards to the persons address

To prevent the person causing physical injury to himself or another; suffering physical injury; causing loss or damage to property; committing an offence against public decency and causing unlawful obstruction of the highway

To protect a child or other vulnerable person from the person in question

To allow the prompt and effective investigation of the offence or the conduct of the person

To prevent any prosecution got the offence being hindered by the disappearance of the person in question.

Such provisions are contained within Section 24 of the Police and Criminal Evidence Act and the Code of Practice for the Statutory Power of Arrest by police officers.

Richardson v The Chief Constable of West Midlands Police - The Court has established that it may not be considered necessary to arrest a suspect whom is fully co-operative with police investigations, particularly where a suspect would voluntarily attend the Police station for the purpose of being interviewed.

Whilst the above criteria is helpful in establishing whether a prima facie case exists, breach of the code itself will not ordinarily give rise to a claim for damages against the Chief Constable. There are a number of legal principles which apply to arrest which have to be considered when ascertaining whether or not the arrest was lawful.

Taking the above matters into consideration, it is therefore necessary when looking at the general principles of arrest for the court to look at both the officer's reasonable suspicion and whether the arrest itself was necessary.

In this context, the Court must look at the state of mind of the arresting officer to determine whether he/she had the requisite suspicion and determine what material he was relying on to provide "reasonable grounds" for the arrest and whether the arrest was "necessary".

In relation to "reasonable grounds to suspect" there are three questions to be considered:

Did the arresting officer suspect that the person who has been arrested was guilty of the offence?

To answer this, it depends entirely on the findings of the fact as to the officers state of mind.
Was there reasonable cause for the suspicion?

This is a purely objective requirement to be determined by the Judge and if necessary, on the facts found by a Jury.

If the answer to these questions is in the affirmative, then the officer has discretion which entitles him to make an arrest. In relation to the discretion, the question arises as to whether the discretion has been exercised in accordance with the Wednesbury Provisions.

Following a change in the law in January 2006 the necessity condition was an addition to Section 24 of the Police and Criminal Evidence Act. Whilst this has not been subject to detailed analysis, it is clear that the same questions will arise both in relation to reasonable grounds to suspect and reasonable grounds for believing the arrest was necessary for any of the reasons stated above.

Reasonable grounds to suspect has both subjective and objective questions:

Subjective - The chief constable must prove that the arresting officer did in fact suspect that the arrested person was guilty of the offence for which he was arrested.

Objective - The standard of "reasonable cause" or "reasonable grounds" is not a high one. In a number of cases, arrests have been held to have been lawful in situations where there was only a limited amount of evidence against a potential subspect,  

Indeed, the arresting officer in form of such grounds may rely upon hearsay evidence from a member of the public and once reasonable grounds are present, the police have no duty to make further investigations as to the strength of the evidence. If you have been a victim of unlawful arrest, please contact us at Hennah Haywood to discuss…

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